Date of firing notice–not last day of work–determines when discrimination occurred

An employee who believes she has been fired for discriminatory reasons has the right to sue her employer as soon as she receives a termination notice. That’s true even if the termination isn’t yet effective.

It’s also true if the employer later changes its mind and rescinds the termination before it is scheduled to go into effect.

It’s all because of a recent U.S. Supreme Court decision that set the statute of limitations for filing suit over discharge as beginning on the date of notice rather than last day of work.

Recent case: Alana worked as a program director for a conservative synagogue in New York. She was responsible for planning and coordinating events, as well as assisting with the synagogue’s nursery school program.

Alana got married on July 28. Unknown to her supervisors beforehand was the fact that she was pregnant at the time. She told them the day she married. After a month-long honeymoon, she returned to work, visibly pregnant, a topic that became the subject of conversation at the highest levels of management.

Alana learned later the day she returned that the synagogue was going to “restructure.” Effective on Aug. 15, she would be terminated. She complained, explaining that it would be impossible to find another job while pregnant.

Management then offered her a severance payment in exchange for not suing, which she rejected.

Alana hired an attorney, who informed management that he would file suit for pregnancy discrimination and interference with the right to take FMLA leave. Before the August 15 effective date, management rescinded Alana’s termination notice. It continued to issue her paychecks even after Alana stopped showing up after Aug. 15.

In fact, Alana filed her lawsuit.

The synagogue argued that since it had rescinded the termination, it wasn’t liable for discrimination related to pregnancy, sex or any other protected characteristic.

The trial court agreed, but the 2nd Circuit Court of Appeals reversed. It concluded that a notice to terminate at a future date is an adverse employment action that is completed when it is issued and not when it goes into effect later.

The court cited the 2016 Supreme Court decision in Green v. Brennan. In that case, the Supreme Court concluded that a discrimination claim accrues upon notice of termination, rather than upon the implementation of that decision. Thus, the deadline for filing the EEOC or other initial complaint relies on counting the days from when notice was made.

In other words, the filing deadline starts with the notice, and not actual last day of work.

The 2nd Circuit then added that if the count begins with the notice, then that’s when the employer committed the discriminatory act. Therefore, even if the employer changes its mind and never actually removed the employee from the payroll, she can sue. That’s true under Title VII and also for FMLA claims, the court concluded. (Shultz v. Congregation Shearith Israel of the City of New York, et al., 2nd Cir., 2017)

Final note: Be sure to have your attorney review drafts of all termination notices, even those with effective dates in the future. It’s easier to never have issued the termination notice than to have to rescind it and face a lawsuit anyway.