Supreme Court hears Green constructive discharge racism case.

Must an Employee Still Be Employed to Sue for Discrimination?

Must an Employee Still Be Employed to Sue for Discrimination?

Oral argument from the court.
Dec. 1 2015 11:23 AM

How Long Must an Employee Endure Discrimination?

Chief Justice John Roberts is a surprise working-class hero.

USPS
A mailman (not Marvin Green) pushes a mail cart back to his truck in Santa Monica, California, in 2014.

Photo by Bob Berg/Getty Images

The justices of the Supreme Court do not look particularly peppy as they file onto the bench Monday morning following Thanksgiving break. A majority gulp coffee rather desperately out of unadorned tumblers, though Justice Stephen Breyer sports a cute ceramic mug holding what I have to believe is weak tea. Seven out of nine are wearing their glasses, and eight of nine look drained. Only Justice Ruth Bader Ginsburg looks chipper, a sly grin periodically creeping across her face. Justice Samuel Alito repeatedly leans back and closes his eyes, twice appearing to doze off. Justice Sonia Sotomayor sports glittery gold and emerald earrings—but they fail to brighten the drab atmosphere. Even the typically stolid marshal’s aide planted behind the justices stares absently at the ceiling, mouth slightly agape. The Supreme Court is not immune from a bad case of the Mondays.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

That’s really too bad, because the key case at hand on this dreary Washington morning merits the court’s full attention. On the surface, it’s an employment discrimination case about a black man named Marvin Green who faced what the record suggests was deplorable racism on the part of his employer, the United States Postal Service. But as the justices tease out during an hour of oral arguments, the case is also about something else: whether an employee, once wronged, must continue to endure discriminatory treatment to keep his civil right claim alive.

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Green, the wronged employee here, was a 35-year veteran of the Postal Service when the trouble began. A position for postmaster had opened up in Colorado, and Green applied—but the service passed him over for somebody less qualified who hadn’t even submitted an application. Green contacted an Equal Employment Opportunity counselor who launched an investigation.

Upon learning of Green’s complaint, the Postal Service decided to conduct its own investigation—which turned out to be more of a harassment campaign. At a tense meeting, Green’s supervisors accused him of “intentionally delaying mail,” a criminal charge that came out of the blue. They then suspended him and halted his pay. The Postal Service quickly cleared Green of this charge, but his supervisors concealed that fact, threatening Green’s union representative with further investigations and telling the rep that the charge was a “criminal issue” that “could be a life-changer.”

On Dec. 16, 2009, a terrified Green signed an agreement essentially coercing him into early retirement. He submitted his official resignation on Feb. 9, 2010, effective March 31. On March 22, he contacted another EEO counselor to complain of illegal retaliation and “constructive discharge”—meaning his workplace had become so hostile that he was effectively forced to resign. Then he brought his case to court. The judge promptly tossed it out.

Workplace discrimination is illegal. Retaliation against employees for complaining of workplace discrimination is illegal. Green says he faced both. So why didn’t Green have a case? The Postal Service cited a wrinkle in the law requiring federal employees who allege discrimination to contact an EEO counselor within 45 days “of the date of the matter alleged to be discriminatory.” Green says that matter occurred the date he resigned, since his resignation was spurred by discriminatory treatment. The Postal Service argues that the matter occurred when Green announced his resignation—that is, when the Postal Service pressured him into signing the Dec. 16 agreement. If Green is right, he filed his claim within the legal time limit. If the Postal Service is right, he didn’t, and his lawsuit is invalid.

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The 10th U.S. Circuit Court of Appeals ruled against Green, but zigged in a different, rather alarming direction. It held that the relevant matter is the last discriminatory act that gave rise to an employee’s resignation. Since the literal discriminatory acts against Green occurred well before he filed his claim, the court affirmed the dismissal of his suit.

Into this mess marched the Supreme Court—with Sotomayor, as usual, leading the vanguard for a sensible and just conclusion. Sotomayor notes that the crux of a “constructive discharge” claim is that an employee was faced with discrimination so intolerable that he was forced to quit. The quitting itself, then, isn’t really voluntary; it was, in fact, compelled by the employer. So, Sotomayor asks Brian Wolfman, Green’s quite excellent attorney, “Isn’t a constructive discharge discriminatory in itself?”

Why yes! Wolfman responds. But Justice Antonin Scalia jumps in to cut him down, scoffing that a lot of time could theoretically pass between the discriminatory actions and the discharge itself.

“What if there’s no discrimination for a whole year before the employee quits?” Scalia asks, looking aghast. Wolfman calmly explains that this hypothetical is really not so horrifying as Scalia imagines it to be: If the discharge was motivated by discrimination, it was still the employer’s fault.

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Justice Elena Kagan steps in to help Wolfman, building on Sotomayor’s logic. Even using the 10th Circuit’s standard, wasn’t Green’s resignation still a “discriminatory matter” motivated by unlawful treatment? Wolfman concurs and notes that using the date of resignation as the benchmark here has another benefit: It’s explicitly documented, unlike the slew of discriminatory acts an employee might have faced before he felt forced to resign.

This happy agreement does not sit well with Scalia, who seems genuinely irritated that an employee might decide to keep drawing paychecks and delay his resignation until an opportune moment. Scalia suggests courts use the date an employee announced his intention to resign as the start of the 45-day period—the rule employed by the Postal Service. But as Sotomayor and Kagan note, announcing one’s planned resignation and actually resigning are two different acts. And if one is the result of discrimination, the other is, too. So why not use the true date of resignation, for the sake of fairness (to employees) and ease (for courts)?

But the threads of logic tying Green’s case together don’t fully reveal themselves until Catherine M.A. Carroll approaches the lectern to defend the 10th Circuit’s rule. (This rule is so peculiar that not even the government wanted to defend it; the court had to appoint Carroll to do it instead, so we can’t fault her for supporting a bad argument.) Carroll argues for a highly literal definition of the “last discriminatory act,” linking it not to an employee’s discharge but to the last time an employer actively discriminated against him. Under Carroll’s theory, an employee must report discrimination within 45 days of its occurrence. Wait any longer, and he’s simply out of luck.

The problem with this theory is that—especially in the case of highly abusive discrimination—no employee wants to file his claim while he’s still at that job. To do so would be to invite further mistreatment and hostility. That’s the whole point of the “constructive discharge” theory: It allows employees to pursue their claims once they’re safely removed from the toxic, bigoted workplace. Carroll’s theory cavalierly presumes that a wronged employee can report discrimination, then be forced to quit and hope to land a new job before he runs out of money.

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Of all the justices on the court, you would not expect Chief Justice John Roberts to point out the flaw in Carroll’s argument. But he does, with remarkable poignancy and sensitivity.

“This will be a problem a lot of times,” he tells Carroll. “Quitting your job is a very big deal. You have to plan out” when you’re going to do it, “and just because you can’t take it anymore doesn’t mean you could quit work right away.”

The courtroom gets noticeably quieter as Roberts—big business Roberts, a great defender of corporations and plutocrats—explains the importance of a paycheck to working-class people. Why should an employee be forced to remain in a poisonous workplace, Roberts asks, just to vindicate his civil rights? When an employee says, “I just can’t take this anymore!” isn’t his resignation the direct outgrowth of discrimination?

Carroll has no good answer, because there isn’t one: Roberts is absolutely right. Anyone who has lived paycheck to paycheck knows many employees feel they have no choice but to remain in discriminatory workplaces—and are too afraid to take action for fear of losing their salaries. That’s why constructive discharge claims exist in the first place, and it’s why the court should adopt Green’s reading of the law. Going into Monday’s arguments, I expected to watch the conservative justices hack away at civil rights law as vigorously as they have in the past—most notably in their profoundly unjust ruling that Lilly Ledbetter could not sue for clear sex discrimination because she found evidence of it only well after the fact. But Roberts’ utterly unexpected empathic turn gives me hope that the court might just get Marvin Green’s case right.