Memorandum
To: Management
CC: Employee claim
From: Natasha Miller
Date: 8/20/2014
Re: JDT2
Confidential
This memo is in reference to the filing of the claim by former employee. This memo is to prepare management for the factors that will support or disprove the claims. The term constructive discharge refers a wrongful termination, which is initiated by the employee voluntarily resigning based on a policy change that affects the employee so drastically they have to no choice other than to terminate their position.
“Punitive transfer to a dangerous job , demotion to a humiliating position, hostility, harassment, and coercion are each an example of an intolerable working-condition change that might establish a legal case for a constructive discharge claim, particularly if the employee willfully made or allowed the change as a form of illegal discrimination.” (Unknown 2013)

To support this claim, the following conditions must apply

* Recent and intolerable change * Decision must be deliberate and unjustifiable for business purposes * The employee must have a cause and effect claim that was presented in a timely manner to the change

This is relevant because the employee claims that the policy change affects her/his religious beliefs and for this reason he/she had no other choice but to resign. The schedule change is mandatory has now been extended to include Sundays on a rotating calendar, which it is assumed that this conflicts with the religious belief in question which prohibits work on a holy day.
According to the Society for Human Resource Management Title VII of the Civil Rights Act of 1964 “protects individuals against employment discrimination.” The discrimination categories that are covered under this act are as follows but not limited to * Race/ discrimination based on factors inherent to immutable characteristics * Color can occur between people of the same race or race against race * national origin is a discrimination based on a person geographical or presumed origin * sex involves denying or harassing in the workplace based on gender * religion is the discrimination or restriction to the practice and privilege of all faiths

Based on this Act it is unlawful to deny employment, and business decision cannot be made that target one group of individuals. Performance measures, recruitment and opportunity for advancement must be equal for all. Federal Statues that prohibit discrimination are regulated by the Civil Rights Division of the Department of Justice.

The protected category that can possibly be related to this employee’s claim is the religious discrimination. According to the civil Rights Division of the department of Justice they have the right to “prosecute any crime committed against individuals because of their religion and acts of vandalism against houses of worship. (Unknown 2014). Because this employee is claiming they resigned because of a conflict of an opportunity to worship or belief they would be penalized because they are not able to work on a specific day due to religious belief.

In response to this claim I feel that first the company must consider the individual and investigate the person claims and their history of interactions with the company. The first question that has to be asked is this claim timely. The second question is does the Title VII civil rights act of 1964 applicable to the company based on the number of employees? Before taking legal action there should be an attempt for an informal resolution between parties, going as far as CEO consideration. If no resolve can be established then the responsibility will be for the governing authority to review for mediation. Typically a reasonable test must be administered as requested by the court. A reasonable person test is a test that measures a person’s value as logical or normal. “The test is an objective one based upon a reasonable person standard, not the perception of the particular individual “(University of New Mexico 2014). This test will lower the claimant’s subjective perceptions and help to clarify the intentions of the employee, in this matter. In this case the question is did the employee logically leave work based on his religious belief. Has this been a normal practice and how does this affect the employee, other than financially. There are multiple factors that will be considered in this test knowledge, experience and perception. Policy and procedures of the company must be investigated and ensure that all steps were correctly administered. All risk must be considered based on the location of the company before litigation is considered. Litigation is when an issues is taken to court for a legal decision to be made.

Most cases researched shows that reasonable accommodations have not been met, as in the case of
EEOC vs. Aldi 2008 WL 859249 (W.D Pa. March 2008)
This summary judgment for the employer was denied “where an employee sincerely believes that working on his Sabbath is morally wrong and that it is a sin to try to induce another to working his stead, than an employer’s attempt at accommodation that requires the employee to seek his own replacement is not reasonable”
Here it was the employee’s responsibility to research for them a replacement. It is found that this is not sufficient accommodations as the employee did not feel comfortable forcing someone to work on a day that was what they considered as holy.

In the case of Tepper v Potter, _F.3d, 2007 WL 2983156 (6th cir. Ohio) Martin Tepper a Messianic Jew, claimed that after 10 years of special accommodations, he was no longer given reasonable accommodations. “On the appeal, the court reviewed the applicable section of Title IV, 42 U.S>C 2000e-2(a) and noted that in order to meet the initial burden of proof on an accommodation claim, Tepper was required to show that he: 1. held a sincere religious belief that conflicted with the employment requirement, (2) informed the employer about the conflict, 3.was discharged or disciplined for failing to comply with the conflicting employment requirement.” Ultimately his claim was denied but according to research had he resigned from his position his claim may have possibly differed. Although in this particular case the employee was denied it also shows an example of why this company must be careful about the accommodations that are allotted, it is assumed in this case that there were accommodation suggestions but employer offer an alternative day for this employee on a consistent basis. Also consider employee position change to accommodate if business needs allow.
The case of Ansonia Bd of Ed vs Philbrook, 479U.S 60, 70-71,107 S Ct. 367, 93 L.ed 2d 305 (1986) which states that there has to be proof that more than pay was loss to prove discharge or discipline. ( Johnson 2007). This shows that not all cases are won for the employee, it is the employees responsibility as well to communicate and ensure that the request in not unreasonable, and reasonably justified for the sincere beliefs of that individual.

To avoid this issue going forward it is recommended that the company adopt business practices the lowers the chance of these types of claims and consideration to specific needs must be considered before business changes are made. A reasonable accommodation is defined as systematic changes that affect daily duties in the workplace that ensures the environment is equal for those with disabilities or special needs, as illustrated in the case examples this is highly considered when evaluating a claim.
The employee must first make the employer aware of the religious conflict via standardize form. There must be documentation available via human resources to input timely request. Make a voluntary scheduling available to switch shift days once approval is received.
If the employee is eligible management should give consideration to possible duty change to accommodate hours and ensure business needs are being met. This has to be done with consideration to other employees who may have seniority of feel that this consideration is unfair. Employers should be prepared to show any undue hardship before denying religious accommodations. According to the Us Department of Labor, An agency may justify a refusal to accommodate an individual’s religious beliefs or practices if the agency can demonstrate that the accommodation would cause an undue hardship. (Unknown, 2014). All categories covered under the Title VII Act must have equal consideration and must be clearly outlined in the employee handbook to ensure that this is done uniformly.

References

EEOC vs. Aldi, WL 859249(2008)

Ansonia Bd of Ed vs Philbrook, 479U.S 60, 70-71,107 S Ct. 367, 93 L.ed 2d 305 (1986)

Tepper v Potter, _F.3d, 2007 WL 2983156, 6th cir. Ohio (2007)

Employee Issues.com (2003-2014). Constructive Discharge retrieved from http://employeeissues.com/constructive_discharge.htm

Justice.gov. (Unknown) Protecting the Religious Freedom of All: Federal Laws against Religious Discrimination. Retrieved from http://www.justice.gov/crt/spec_topics/religiousdiscrimination/religionpamp.php

Unknown (2014) Title VII The civil rights Act of 1964 retrieved from http://www.shrm.org/legalissues/federalresources/federalstatutesregulationsandguidanc/pages/titleviiofthecivilrightsactof1964.aspx Johnson, Andrea M (2007) Sixth Circuit Court Denies Employee’s Religious Accommodations and Discrimination Claims retrieved http://www.plunkettcooney.com/publications-145.html

United States Department of Labor. (Unknown) Religious Discrimination and Accommodations in the Federal Workplace retrieved from http://www.dol.gov/oasam/programs/crc/2011-religious-discrimination-and-accommodation.htm

University of New Mexico (2014) Reasonable Person retrieved from http://jec.unm.edu/education/online-training/stalking-tutorial/reasonable-person