A: Constructive Discharge As a Legal Concept As you know, recent company growth prompted us to make production schedule changes after the first of the year. Production employees are no longer working the standard Monday through Friday work week; instead, they are now working four 12-hour days with four days off. The four work days can occur any day of the week, Monday through Sunday. The entire production team is required to work this shift. Because of this schedule change, a constructive discharge claim has been filed against us by Thomas Thompson. Thompson feels we deliberately made his working conditions intolerable, namely because he now has to work on a religious holy day because of our mandatory shift change. Thomas saw the mandatory shift change as discriminatory, and he resigned, believing he had no other choice in order to practice his religion. Prior to the change in schedule, Thompson worked Monday through Friday with two days off on the weekend. This allowed him to observe his holy day on either Saturday or Sunday. By definition, constructive discharge occurs “when the employer, rather than acting directly, ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation’” (Young v. Southwestern Savings & Loan Association, 1975). Claims such as Thompson’s that end up in court are generally tested by applying the reasonable person test. According to The University of Chicago Law Review, “an employee who resigns after being subjected to unlawful discrimination is said to have been constructively discharged if a reasonable person would have found the discriminatory conditions to be intolerable” (1986, p. 562). It is my opinion that a reasonable person will see that Thompson has NOT been discriminated against. Therefore, I do not recommend we take any action at this time.
B: Areas Covered Under Title VII The backbone and seriousness of the above claim is derived from laws which protect all of us as employees under Title VII of the Civil Rights Act of 1964. The following references are some of the specific laws that regulate and protect both employers and employees;
SEC. 703. (a) It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. Two types of discrimination are also illegal according to Title VII. 1. According to Balkin, Cardy, & Gomez-Mejia, disparate treatment, “occurs when an employer treats an employee differently because of his or her protected-class status” (2010, p. 93). An example of this would be giving special benefits to one employee over another because of their gender. 2. Disparate impact, “occurs when the same standard is applied to all applicants or employees, but that standard affects a protected class more negatively” (Balkin, Cardy, & Gomez-Mejia (2010, p. 93). An example of this discrimination is a height requirement for a police department. Women, Latinos and Asian Americans are generally shorter than African American and Caucasian males. Because of a height requirement, it would put the shorter individuals at a disadvantage.

C: Recommended Company Response

I think we need to let Thompson know that we are taking his claim seriously, but we will not be bullied. We have made shift changes to meet the growing demands of the company and in no way singled him out. After researching constructive discharge thoroughly, I believe we will prevail if we go to trial. During my research, I found many instances of constructive discharge claims similar to Thompson’s, that went to trial and were dismissed. Here are a few examples.

C1: Legal References

Case 1: In the case of Ellington v. Murray Energy (2010) Willie Lee Ellington, a long time employee and coal miner for Murray Energy ,who’s religious affiliation prohibited him from working on the Sabbath, made a similar claim of constructive discharge. Even though for many years management had accommodated his schedule to allow him a day off to worship on the Sabbath, a recent change in ownership required that he work on the Sabbath. The reason for the change was to improve efficiency and to improve production budgets. Ellington claimed that the new owners failed to, under Title VII, accommodate his religious beliefs. Ellington was even given the opportunity to swap shifts with other miners but never attempted to do so. After a lengthy trial, Mr. Ellington failed to convince a judge that he had been constructively discharged, and the case was dismissed. Case 2: In the case of Beadle v. The City of Tampa (1995) Mr. Beadle had recently completed Tampa’s Police Academy training and had begun his field training assignments. His new assignments required him to work four ten-hour days followed by three days off. After eight weeks, the shift rotated forward by one day. The department did not allow new recruits to use vacation or leave time during their first six months and did not allow them to trade days with others in the department. When he realized he would have to work on his Sabbath, Beadle made a request to take the day off, which was granted. He was informed, however, that he would not be allowed to do this again. The next week he put in another request, but he was denied the time off. Beadle was informed that he had to work his assigned shift and that he would not be allowed to transfer to another squad. Shortly after that he turned in his resignation and filed a lawsuit against the City of Tampa, claiming that he was constructively discharged because his former employers had failed to reasonably accommodate his religious beliefs. During the trial, the City of Tampa claimed that they reasonably accommodated Beadle’s schedule by using a neutral rotating shift. The magistrate concluded that the Department suggested they use a rotating shift and that was a reasonable effort to accommodate Beadle under Title VII and entered the judgment in favor of the City of Tampa. Case 3: In the case of Goldmeier & Goldmeier v. Allstate Insurance Company (2003) the Goldmeiers worked as employees; they ran an Allstate office in the late 1980s. The Goldmeiers were Sabbath observant Orthodox Jews and adhered strongly with their religion, which did not allow them to work from sundown Friday until sundown Saturday. For many years Allstate accommodated their religious schedules, but, in 1998, Allstate implemented a new Service Availability Standard requiring that all offices remain open until 6:00 p.m. on Fridays and be open on Saturdays from 9 a.m. until 1 p.m.. The Goldmeiers had a conflict with the new requirements and asked for accommodations. In response to their requests, Allstate suggested they hire an additional agent to cover the office while they were absent to attend to their religious observances. The Goldmeiers took offense to this; they didn’t want to cover the additional cost with some of their personal funds and did not trust someone else to run their office while they were away. The Goldmeiers did not look into any other accommodation options and informed Allstate that they were resigning from their jobs due to constructive discharge. About a year and a half later, the case went to trial, and it was found that the Goldmeiers failed to show sufficient evidence that Allstate deliberately created intolerable working conditions with the intentions of having them quit.

C2: Recommended Steps To Avoid This In The Future In order to avoid any additional claims or legal issues in the future, namely claims that violate Title VII of the Civil Rights Act of 1964, I suggest we follow these guidelines; Put the policy changes in writing, but also add verbiage that says: “If this schedule change conflicts with you in any way, we strongly suggest that you discuss this with your manager. All requests or conflicts in schedule will be analyzed, and we will work hard to come up with an accommodation that mutually benefits both you as an employee and us as a company. Switching shifts will be allowed, provided you speak with your manager about prior to your scheduled shift change.”
References

Balkin, D.B., & Cardy, R.L., & Gomez-Mejia, L.R. (2010). Understanding Equal Opportunity and the Legal Environment, Managing Human Resources, Sixth Edition (p. 93). Retrieved from http://wgu.coursesmart.com/9780136094036/87

Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995).
Civil Rights Act of 1964. (n.d.) Find Law. The U.S. Department of State. Retrieved September 17, 2011 from http://employment.findlaw.com/employment/employment-employee-%20discrimination-harrassment/civil-rights-title-7.html

Ellington v. Murray Energy, Dist. Court (USDC, D. Utah, 2010).

Finnegan, S. (1986). Constructive Discharge Under Title VII and the ADEA. The University of Chicago Law Review,53, 562.

Goldmeier & Goldmeier v. Allstate Insurance Company, 337 F.3d 629 (6th Cir. 2003).

Young v. Southwestern Savings & Loan Association, 509 F.2d 140, 144 (5th Cir. 1975).