Timing matters.

Photographer: Quinn Rooney/Getty Images

The Spirit of the Law Counts, When Someone Is Not Quite Fired

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

It's complicated to sue for discriminatory firing when you haven't actually been fired. But it's doable. The lesson from the Supreme Court on Monday is that timing matters.

The justices weighed in on the important question of when the clock starts for plaintiffs who have been “constructively discharged” -- that is, effectively fired because of discriminatory treatment. Seven of the eight justices agreed that if someone quit a job and alleges discrimination was the reason, his claim starts when he quit, not when the discriminatory treatment against him is said to have occurred.

The decision is a wise one, reflecting a common-sense understanding of this sort of discrimination. It’s important because it shows the court is willing to enforce anti-discrimination laws, notwithstanding the literal words of the law. Only Justice Clarence Thomas, the last of the Scalia-style literalists, dissented.

The facts of the case, Green v. Brennan, were classics of the constructive-discharge genre. Marvin Green, a 35-year veteran of the Post Office, applied to be postmaster of Englewood, Colorado. When he didn’t get the job, he sued for racial discrimination.

Green’s supervisors didn’t like his suit, and they threatened him with criminal investigation by the Office of the Inspector General. Then they offered him a deal that sounds like the premise for a Hollywood movie about an African-American postal worker: resign or else be reassigned to Wamsutter, Wyoming, population 451 -- at a “considerably” lower salary.

Green didn’t want to play that role, and he resigned. Forty-one days after his resignation, he sued on a theory of constructive discharge, alleging he’d essentially been fired.

Under Title VII of the Civil Rights Act of 1964, you have to bring your discrimination claim to the Equal Employment Opportunity Commission before suing. The EEOC regulation says you must “initiate contact … within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.”

Green wasn’t officially fired, so there was no “personnel action.” The U.S. Court of Appeals for the 10th Circuit held that Green had to file his claim within 45 days of the last action the post office took against him, namely its “offer” for him to quit or relocate to Wamsutter. It dismissed Green’s claim because he hadn’t filed with 45 days of the offer.

The courts of appeal were divided on the rule.  The justices could have held, as Thomas urged, that the “matter alleged to be discriminatory” is the employer’s action, not the employee’s resignation under duress. That would have followed the literal words of the statute, as Thomas pointed out. It seems probable that the late justice Antonin Scalia would have agreed with Thomas. After all, the employer commits the discriminatory acts. The resignation is just the effect of those acts.

But seven justices thought otherwise. Justice Sonia Sotomayor wrote the opinion holding that the 45-day period begins to run from the employee’s resignation. Her main legal argument was that the claim for constructive discharge couldn’t be filed until the employee quit.

She added an argument from what she called “practical sense.” Seeing things from the point of view of the employee, she noted that someone subjected to intolerable conditions might hold out for various reasons.  He might not be able to afford to quit. Or a teacher, she said, might wait until the school year was over.

This might not seem that significant: after all, the court is supposed to use common sense in understanding the law.

But it matters for the legacy of Scalia’s textualism. One of Scalia’s quasi-proteges, Justice Samuel Alito, wrote a separate concurrence to offer the novel theory that there are two kids of constructive discharge. When your employer wants you to resign, said Alito, your discharge claim clock starts to run when you quit. But if the employer doesn’t want you to quit, and only makes your life so miserable that you must, the clock runs from the employer’s last intolerable act.

This was a creative theory and to some degree even commonsensical. But it’s totally non-textualist. The law doesn’t differentiate between different types of constructive discharge claims. Alito is simply not a textualist, as his opinion shows. He’s more interested in interpreting the law functionally. That shows shows Alito isn’t the heir to Scalia’s textualism.

Thomas is. But he’s an heir alone, without allies. Chief Justice John Roberts reads statutes in the light of their purposes. The liberals aren’t textualists, either.

All this helps undercut the view, expressed by many after Scalia’s death, that textualism would be his great jurisprudential legacy. It won’t. It’s an interpretive dead-end, likely to linger at best as a truism -- “read the words of the law first.”

Scalia’s originalism, his resistance to the "living" Constitution, is a different matter. Its survival will depend largely on the composition of the court. And that we won’t know until November, or a bit after.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net