Constructive Discharge Memo

Memorandum To:Mike Bigg, CEO From:HR Manager Date:10/14/2012 Re:EEO CONSTRUCTIVE DISCHARGE CLAIM Constructive Discharge Constructive discharge occurs when an employee is forced to quit because the working conditions have become unbearable. According to Black’s Law Dictionary a constructive discharge is “a termination of employment brought about by making the employee's working conditions so intolerable that the employee feels compelled to leave. "These conditions would include harassment or discrimination or receiving a negative change in working conditions or his pay for reasons that are not work related.

A litmus test for this is to determine what a reasonable person would do in this scenario. If a reasonable person would have resigned due to the unbearable conditions, and if the employer had actual knowledge of the intolerable actions or conditions and could have remedied them but did not, then the employee would be considered constructively discharged. In a case where an employee feels the employer made the job so unbearable that he cannot remain there, a wrongful termination suit can be filed.

In legal terms, being compelled to quit is legally similar to being unfairly discharged. In the case we are facing now, the complainant feels that our schedule change would not allow him to continue his employment with us due to the fact the rotating schedule would force him to occasionally work on his religious holy day. In our situation, this law could have some merit if it can be proven that we changed the schedule in an attempt to target any specific individuals. In that case, we could be deemed at fault.

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However, due to company growth, the work schedule was modified to reflect a new production requirement. Since the changes were due directly to the need to change the entire production schedule and not aimed specifically at a single employee, this situation should not apply. Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 is an act that was passed by congress to provide citizens protection against discrimination by employers based on race, religion, color, sex and national origin.

In Title VII of the Civil Rights Act of 1964, the law stipulates that it shall be an unlawful practice for an employer to discharge any employee, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of his employment because of such individual’s race, color, religion, sex, or national origin. This is the primary federal law that prohibits discrimination in the workplace. In basic terms, this act prohibits employers from making employment decisions based on race, color, religion, sex and national origin.

Age discrimination and disability discrimination are not included in this act and are now covered by subsequent laws enacted by congress. Title VII of the Civil Rights Act of 1964 relates directly to our case as the employee in question has charged that we violated his rights under this act based on religion discrimination. His claim that we are making him work on his religious holy day brings Title VII into focus and it needs to be reviewed to see if his claim can be substantiated.

Upon review of the entire operation and in light of the growth the company is experiencing, it does not appear that we have violated his civil rights as claimed under this act. With all personnel being affected by the schedule change and each employee treated equally in the scheduling, it would not seem likely that one individual has been singled out for his religious beliefs. Recommendation In reviewing the facts surrounding this case, it is apparent that we are not guilty of the charges levied against us and I suggest that we proceed forward and litigate this case.

Since the decision was made to change shifts due to company growth and the need for a revised production schedule, I do not feel that we handled the situation incorrectly and recommend that we continue on the same course. Making strategic operational decisions and mitigating supply chain process risks is an important part of the business model. Our decision was based solely on the need of the business to remain competitive in the marketplace, and not focused on changing our schedule to impede the religious freedoms any single employee.

The only schedule that remained unchanged was for the office employees. Since the employee in question was not an office employee, and as we did not have any openings in that area, a move to the office would not be prudent or equitable for any other employees. Finally, at no point before the employee contacted the EEOC were we made aware of his religious beliefs and needs. Because of that lack of knowledge, we could not have made any accommodations for this employee to assist with his situation. We should feel comfortable informing the EEOC that we are not guilty of the charges that were alleged.

Legal Support The most defining legal support that is available is the Civil Rights Act of 1964 itself. In Title VII of this Act, clear guidelines are given as to what protection employees are given against unlawful employment practices. In SEC. 2000e-2 of Title VII of The Civil Rights Act of 1964, it indicate that it shall be illegal for an employer to…discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individuals race, color, religion, sex or national origin.

This employee has alleged that he was forced to follow the new policy on shift work that he was discriminated against as he would now be required to work on his religious holy day. Courts stipulate that a reasonable person test should be utilized to help determine this. By using the reasonable person test – would a reasonable person quit due to conditions that were intolerable at the workplace – I would suggest that would not occur. Many people’s religious holy days were affected by the new schedule as the schedule demanded a rotating four day on, four day off schedule.

While it may be inconvenient to some, it would not necessarily require an individual to resign his position. This employee at no time informed the employer of any conflicts based on his religion prior to his resignation. There could even be the possibility of utilizing vacation or personal days when the religious holy days fell on specific work required days. In Lawson V. Washington, 2001, a state trooper cadet resigned after realizing he would have to salute the flag and swear an oath to the state – both of which are against his religion. He felt he would be terminated if he failed to comply with the academy’s manual.

At no point did anyone in command at the academy indicate that he would be terminated, although they also never indicated they would make any accommodations for him in regards to this issue. In this case, Lawson was able to make a prima facie case on 2 of 3 points. He was able to prove his religion was legitimate and the demands were based on that religion. Secondly, he did inform his employer of his religious beliefs and the onus was then on the employer to make reasonable accommodations for him. He could not prove the third point where the academy would have terminated his employment if he did not comply.

In our case, the employee never made it known that his religion would not allow him to work on specific days. Because the condition was not known, accommodations would have never been made available to him. This point alone eliminates our responsibilities in this case. In Equal Employment Opportunity Commission, Plaintiff-appellant, v. University of Chicago Hospitals, Defendant-appellee, (2001) a case where an employee believed she was targeted specifically for her religious beliefs, eventually resigned due to the pressure and hostile environment she felt at work.

Her employer made specific comments to her regarding her recruiting persons for employment from her church. The employer even told her superior to fire her if she did not end the practice of recruiting from her church. The EEOC was able to prove constructive discharge, where the employee felt as she must quit to avoid being fired. However, the courts stipulate it must be proven that the constructive discharge was motivated by discriminatory intent. Basically, it must be proved that not only was she forced out, but the reason behind the action was religious discrimination.

The courts disagreed with this point and believed that the hospital’s actions were not motivated by religious discrimination. The relationship of this case to ours is significant. While the complainant may believe he was forced to quit due to our perceived infringement of his religious beliefs, there was no premeditation in regards to forcing any employee to leave because of their religious beliefs. In addition, since the employee never made it known his need for special accommodations, we would never have been able to foresee this issue with him.

Steps for the future We can take a number of steps to strengthen our defenses against violations of Title VII of The Civil Rights Act of 1964 in the future. A primary strategy is to do an internal review of all company policies and procedures to see if any potential risks can be identified (Jenkins, 2004). If they are, steps can be taken to decrease the potential for exposure to lawsuits by eliminating practices that are deemed wrong. Another tactic is to implement a formal complaint system and encourage employees to make use of it.

These systems could help us reveal and rectify any problems, real or perceived, before they lead to lawsuits. Training all members of the management team in all aspects of Title VII of the Civil Rights Act of 1964 is an imperative step in a proactive stance against potential wrongdoing. Developing diversity committees could help the entire organization gain a better understanding of the needs of employees. Effective communication is the final step to help avoid issues in the future and is tantamount to successful and happy employees.

Open communication from employee to employer cannot be stressed enough. If we listen to our employees and treat them all fairly, avoiding harassment and discrimination charges in the future will be much easier and possibly eliminated at all. A regular review by the Human Resources department will be necessary to insure continued compliance with appropriate policies and procedures that will keep us from committing violations of Title VII.

Annual harassment and discrimination retraining for all personnel will help everyone gain a better understanding on what is and is not acceptable and problems may be avoided. Finally, regular communication with the EEOC can help by answering any questions we might have regarding the fair and equal treatment of all employees. Black’s Law Dictionary (N. D. ). Retrieved from http://thelawdictionary. org/search/? cx=partner-pub-4620319056007131%3A7293005414&cof=FORID%3A10&ie=UTF-8&q=discharge&x=0&y=0 Constructive Discharge (N.

D. ), Retrieved from http://jobsearch. about. com/od/jobloss/g/constructivedischarge. htm EEOC V. University of Chicago Hospitals 276 F. 3d 326 Lawson v. State of Washington, 319 F. 3d 498 - Court of Appeals, 9th Circuit 2003 Title VII of the Civil Rights Act of 1964, SEC. 2000e-2. [Section 703] Jenkins, Lin (2004), Avoiding title VII violations – employment policies and procedures. Retreived from http://goarticles. com/article/Avoiding-Title-VII-Violations-Employment-Policies-and-Procedures/2759944/

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