KemLaw

Constructive discharge – also referred to as constructive termination, is essentially a claim of wrongful termination. A wrongful constructive dismissal occurs when, instead of firing an employee, the employer makes working conditions so intolerable that the employee is forced to resign.

Odd that the word “constructive” is used in the phrase – isn’t it?

In some cases, members of a class protected by civil rights laws may believe that they have no choice but to resign because, due to their protected status, whether that is race, sex, national origin, religion, age, disability or some other characteristic, their employer has made work conditions intolerable.

In these cases, an employee has the right to file a civil rights lawsuit against the employer. But there is a catch. The employee seeking relief must initiate contact with an Equal Employment Opportunity Commission (EEOC) counselor within a clearly defined period of time. Failure to do so nullifies the claim.

So what’s that timeframe?

Title VII of the Civil Rights Act of 1964 regulations state that an aggrieved federal civil employee “must initiate contact with a EEOC counselor within 45 days of [the] date of the matter alleged to be discriminatory.”

The U.S. Supreme Court recently heard a case on this matter brought by a former Postal Service employee who believed he had been unjustly forced to resign after complaining about being passed over for a promotion. In this instance, he had initiated contact with the EEOC 41 days after submitting his resignation paperwork to the Postal Service, but 96 days after signing the settlement agreement.

The Postal Service claimed the employee had failed to meet the notification requirements of the law. Two lower courts sided with the Postal Service but the Supreme Court reversed those decisions, noting that a constructive discharge claim accrues only after an employee resigns.

It is important to note that employees in the private sector have more time to file a charge with the EEOC—180 days—and 300 days to file a charge with a state agency. But the rationale of the Supreme Court’s decision would also apply to the private sector.

If you’re an employer and have questions about EEOC rules and regulations, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys have over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please call us if we can help you.

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