On May 23, 2016, the United States Supreme Court decided that an employee’s time to file a discrimination charge for an alleged constructive discharge begins to run on the day that the employee quits his or her job (or gives notice of his or her intent to quit) rather than on the day of the last act of alleged discrimination that caused the employee to resign. The Court concluded that until an employee actually resigns, the employee does not have a “complete and present cause of action” as two key elements of a constructive discharge claim are (1) discrimination and (2) discharge. Applying ordinary principles applicable to statutes of limitation, the Court concluded that there is no viable claim for constructive discharge until the employee resigns, that it would be unfair to require an employee to make a claim prior to the date on which the claim became viable, and that the time period for filing a charge with the EEOC thus does not begin to run until the date of resignation.
This decision resolved a split in the United States Courts of Appeal. One side of the split, which included the Tenth Circuit Court of Appeals (the Circuit that encompasses the United States District Court for the District of New Mexico) had held that the deadline for contacting the EEOC should be calculated from the date of the last act of alleged discrimination. The other side of the split had held that the deadline should be calculated from the date of resignation. This decision thus lengthens the time in which an employee in New Mexico is allowed to file a charge alleging violation of federal anti-discrimination laws. An employee can now wait until he or she quits to file a charge of discrimination, even if the alleged discriminatory conduct occurred months or years prior to the employee's decision to quit.
At first blush the Supreme Court’s decision seems to open the door to long stale complaints by employees who decide to quit their jobs. Some might fear that under Green, an employee could resign and claim that the resignation was caused by alleged discrimination that occurred months or years before the resignation. But given the elements of the constructive discharge cause of action, at least in New Mexico, many fears of stale claims should be alleviated by the fact that the employee must prove that his or her working conditions were so intolerable that a reasonable person would be compelled to resign or, stated differently, that the employee had no choice but to quit. With every day that passes between an alleged act of discrimination and an employee’s decision to resign, the more difficult it will be for the employee to prove that he or she could not tolerate the discriminatory treatment. Jurors should be skeptical of a claim that an employee's working conditions were so terrible that the employee had no choice but to quit when the employee kept working for months or years after any allegedly discriminatory treatment.
For most New Mexico constructive discharge claims, Green should have very little practical impact. Given the elements of a constructive discharge claim—that the working conditions are so intolerable that the employee had no choice but to quit - there is often a close temporal proximity between allegedly discriminatory conduct and the employee’s resignation. Thus, for the vast majority of cases, Green is likely inconsequential. The few employees who benefit from the additional time to initiate a constructive discharge claim will still be required to establish each of the elements of the claim and employers will still have the opportunity to show that the employee failed to utilize reasonable avenues of reporting discrimination within the workplace.
While Green is only applicable to claims brought under federal anti-discrimination laws (and arguably only to claims brought by federal employees), it may also have an impact on claims brought under New Mexico law. The New Mexico Human Rights Act (NMHRA), like its federal counterpart, requires an employee to file a charge with the Human Rights Division “within three hundred days after the alleged act was committed.” NMSA 1978, 28-1- 10(A). While this language is slightly different than the language at issue in Green, the underlying policy concerns—i.e., the fact that a constructive discharge claim does not exist until an employee actually resigns—are identical. Although New Mexico Courts applying state law are not bound by Green, our courts frequently look to federal law when interpreting the NMHRA due to the fact that the NMHRA closely parallels Title VII. Therefore, it is foreseeable that a New Mexico Appellate Court will consider the Green decision when reviewing constructive discharge claims under state law. That said, a New Mexico Court applying New Mexico law is not necessarily bound by Green and any claims brought under the NMHRA for constructive discharge should be closely scrutinized to assess whether the argument should be made that the claim needed to be brought within 180 days of the acts that caused the employee to quit rather than the date that the employee actually quit.