No take backs! Employer rescinds a termination, but can’t dodge a discrimination claim

2009-04-21 Hampton Forest Apartment Homes playground

The rules of the playground apply with equal force at work.

Except, no cooties.

[For my email subscribers, sorry about the deluge of posts today. We had some technical difficulties with the email feed over the past two days. I apologize. But, you guys get what you pay for.]

Yesterday, the Second Circuit Court of Appeals entertained the appeal of a case involving this set of facts alleged in the plaintiff’s complaint:

  • employer communicates a layoff to a pregnant employee,
  • employee lawyers up and threatens to sue for discrimination, and
  • employer subsequently rescinds the termination before the employee’s last day of work.

Has the employer mooted the employee’s possible pregnancy-bias claim by reinstating her? [cue music]

Or, is it too little, too late? [cue music]

What do I know? I’m just nerd blogger, albeit with a nice beard and great taste in Double IPAs. So, I defer to the Second Circuit and it’s opinion (here) in Shultz v. Congregation Shearith Israel of the City of New York:

The [discrimination] claim is actionable on the date when the employer notifies the employee he is fired, not on the last day of his employment. The Supreme Court’s conclusion that a discrimination claim accrues upon notice of termination, rather than upon the implementation of that decision, necessarily implies that the notification of termination qualifies as an adverse employment action….[R]escission of the notice at a point after the cause of action has accrued cannot eliminate the adverse employment action that has already occurred, and negate an accrued claim for relief.

So, once you deliver the bad news, you’re stuck with it. Then again, not many employers actually walk back a termination when subsequently threatened with a lawsuit.

Either way, I’ll be gainfully employed for a long time.

***sips nectar from Chalise***

“Doing What’s Right – Not Just What’s Legal”
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