Not changing your mind on an employee’s resignation could be illegal

What do you do if they change their mind?
What do you do if they change their mind?

Usually when an employee resigns the employer accepts it and that is the end of the situation. Occasionally an employee will change their mind and ask if they can rescind their resignation. Many companies have policies against taking people back, after all they left for a reason, but some companies will take an employee back depending on their position and value to the company. What if not taking the employee back was declared to be illegal? What would you do then?


This very interesting case was described by Jonathan Crotty and Michael Vanesse of the law firm Parker Poe. The case involved a woman who tendered her resignation and then filed a complaint of sexual harassment against her supervisor. During the investigation the woman asked to rescind her resignation. According to Crotty and Vanesse “The supervisor accused of harassment refused to allow withdrawal of her resignation, despite the recommendation of the plaintiff’s direct supervisor that she be allowed to do so.” The now former employee filed a retaliation claim under Title VII.
The district court said “that failure to allow an employee to undo her resignation is not an adverse employment action necessary to support a Title VII retaliation claim.” That got appealed, as you might have guessed otherwise I would not be writing about it, and the Fifth Circuit reversed the lower court’s ruling. According to the attorneys at Parker Poe “The court concluded that the harassment complaint may have prompted the supervisor to refuse the withdrawal request.”

Needs analysis

In returning the case to the lower court for a jury trial the Fifth Circuit Court said a case of this sort has to be analyzed for the particulars. It would depend on specifics such as:

  • Did the company have a policy that denied all requests to rescind a resignation?
  • Did the supervisor involved actually have the authority to make such a decision?
  • What had the company done in previous situations?

Depending on the answers to these questions refusing to reconsider a resignation may not be considered retaliatory


Crotty and Vanesse give some great advice for companies that find themselves in such a situation. They say “in situations involving claims of workplace discrimination or harassment, employers should not automatically reject employees’ requests to reconsider their decision to resign from employment.” In this particular case it looks bad when the ex-employee’s direct boss was willing to take her back and the accused boss said “no way.”
Be careful how you treat resigning or resigned employees.
Photo credit: Stuart Miles

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