MEMO

TO: CEO

FROM: Division Manager

DATE: January 29, 2014

RE: Discrimination Research

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The following are my findings regarding the constructive discharge from the employee that has left our company after our policy change.

The employee is alleging that we discriminated against them because we made them work on a “Holy Day.” He is claiming “constructive discharge.” Constructive Discharge is when an organization makes the employee’s work environment was so intolerable that they had no choice but to quit (constructive dismissal). He is stating that because we change the work schedule from a five day Monday through Friday to a 12 hours shift, four days on and four days off. Since this new schedule means that they can end up working any day of the week including Saturday or Sunday, he would have to work on the “Holy Day”. Since the production workers are the only ones that the schedule changed for, this can be portrayed that we are discriminating them.

Religion is one of the protected categories that are protected under Title VII of the Civil Rights Act of 1964. This is Act protects employees from being discriminated on the bases of race and color, national origin, religion, and sex. This Act is only in effect for companies that have more than 15 employees. Discrimination is in all aspects of a person’s employment. You cannot discriminate in the Recruiting, Hiring, Performance, Training, Wages, and Benefits. What is relevant to our situation is religious discrimination. According to this Act, you may not treat a person unfavorably because of religious beliefs (Religious Discrimination). This is relevant in our situation because we needed to make sure we accommodated him and left him off on the “Holy Day.”

The first thing we have to worry about is the “reasonable person test”. This test in reality is to state if a normal person would have suffered discrimination is put in this situation. In other words, would a person who was not religious feel that this schedule change would make them feel the work environment was so hostile that they would have no choice, but to resign from their position. I am putting myself as a “reasonable person” for this situation. I do not feel that the environment would be hostile. I would just have to look at other options before I leave this position. I would make sure that I cannot switch with another person or use my vacation days for any time I would want off on the “Holy Day.”

The second recommendation is to let the EEOC know that we feel we are not guilty of discrimination towards this employee. One of our arguments is that this employee did not inform us of his religious beliefs. It is the law that if he did we had to accommodate him unless doing so would cause undue hardship on our company (Am I protected from religious discrimination?). It is impossible for us to help him out if he does not inform us. This can also be seen in Gwendolyn I. Cooper v. Oak Rubber Co., she filed suit against the company alleging that they discriminated against her religious beliefs. Oak instituted an accumulation of points for unexcused absences because they had a serious absenteeism problem. Oak ran five or six day work weeks with the sixth or the seventh day would be for cleaning and maintaining the machines. Gwendolyn started working for them in 1975, started attending her church services in Jan. 1984, and had gotten baptized in her church in Dec. 1984. She was not supposed to work sundown Friday to sundown Saturday. In 1984, she worked numerous Saturdays and a total of nine Saturdays in 1985. In 1986, she informed her supervisor that she would not be able to work on Saturdays because of religious beliefs. Her supervisor’s response was that the Saturday work was not always done and that they did not know when it would happen, so they could not do anything for her. She was given the option of using her leave time and also to go back to her previous shift, so that she could attend Saturday services. Her response was no because it went against her religious beliefs. She kept missing Saturdays and then resigned in April to avoid receiving the tenth point for being absent. A month after she left the company hired 18 more employees to help alleviate the work. In the end, the court ruled against her because Oak could not dismiss her from working on Saturdays without undue hardship, they would have had to hire another person to cover her time (Gwendolyn I. Cooper v. Oak Rubber Company and John Doe, Supervisor, 1994).

Another argument that would help us is that the employee did not work with us in accommodating his religious beliefs. He left the burden on us as the company, when in reality he needed to work with us (Kenneth R. Yott v. NORTH AMERICAN ROCKWELL CORPORATION and International Union, United Automobile Aerospace and Agricultural Implement Workers of America, Local 887, 1979). Basically this case deals with Kenneth R. Yott being forced to pay dues to cover him even though he was not in the union. When he was hired, this was not the case. When he talked with the union and told them about his religious beliefs, he was told that he still had to pay the dues and he should pay a equal amount to a charity. He stated to them that it was the same thing, he could not do this. In the end the judge did ruled for Kenneth, but they also stated that the employee cannot take it upon themselves to take care of the problem. They have to work with the employer in order to make sure the accommodations are reasonable.

The last argument would have to establish a prima facie case of discrimination (Hussein v. Raban Supply Co, 1996). Prima facie means true, valid, or sufficient at first impression (Merriam-Webster Dictionary, 14). In other words, it is evident that there was discrimination with just looking at the situation. Once the employee establishes prima facie, it is then the employers turn to show that they did not discrimnate against the employee. If they can show this, then is it’s the turn of the employee to show evidence again. This can be seen in the case of Hussein v. Raban Supply Co, the employee had to show that the company had discriminated against her. At first there were not any evidence that she was not discriminated against because Raban had discharge two more employees in her department and did not replace any of them until a few months later. So she could not show any prima facie. But then she could state that the other two employees that they discharged was done two months later and they were Caucasian and she is Asian Indian. She was also not given a performance evaluation or raise after her first three months, her supervisor also made comments regarding her arranged marriage, and her accent and national origin. When she proved this the courts found that she did have prima facie. Now the company in turn stated that they had lost some major accounts and they were is financial restraints, which in turn was the reason why they laid Hussein off. Hussein did not have any factual evidence that she was discriminated on. The courts stated that she needed to have specific, substantial evidence of pretext (Hussein v. Raban Supply Co, 1996). Since she could not show this evidence, there was not discrimination. This case can help us because the employee did not talk to us and he cannot show concrete evidence that we changed our policy in order to have him leave. This policy was changed to meet our needs and we can show concrete evidence that shows this.

We have to make sure; we stay away from anymore discrimination issues. Of course, we will not be perfect, but we have to try. First of all, we have to make sure all our supervisors and managers understand the Title VII of the Civil Rights Act of 1964. This act states that you cannot discriminate against an employee regarding sex, race, color, national origin, and religion. (Resources, 14). Discrimination is being unjust or prejudicial treatment against someone ( Merriam-Webster Dictionary, 14). This is in every aspect of employment from interviewing and hiring to salary increases. This is in every thing that deals with them being an employee. This has to be drilled into our management because they are the ones that are interacting with our employees on a daily basis. The best way to get them to think about this would be to have a yearly training. The training would inform them of what is Title VII of the Civil Right Act of 1964, what are the protected categories, and give examples of ways you can discriminate. I would not let anyone become a manager or supervisor without going through this training and also without completing it yearly. Not only should our supervising employees get this training, but all our employees should have a similar training and add what steps to take if you are being discriminated against by someone in the organization. We can include this with our New Hire Orientation and then maybe every two or three years after that, but we have to make sure that we have something for them.

Another way we can help prevent discrimination against an employee is to make sure that when we make any decision regarding an employee to think about a couple things. We have to make sure that we get to know our employees and that we can tell how any decision would impact them. For example, when we reward employees we have to make sure that not a particular race or national origin are the ones being rewarded. We have to make sure that rewards are given because of performance or seniority. Another example is when we make a policy change, we know how this will impact our employees. We have to make sure that we don’t see ourselves with a case like the current one again.

If you have any questions, please feel free to contact me.

References

(14, 02 11). Retrieved from Merriam-Webster Dictionary: http://www.merriam-webster.com/dictionary/discrimination

Am I protected from religious discrimination? (n.d.). Retrieved 02 10, 2014, from Open Jurist: http://openjurist.org/law/am-i-protected-from-religious-discrimination

constructive dismissal. (n.d.). Retrieved 02 01, 2014, from Business Dictionary.com: http://www.businessdictionary.com/definition/constructive-dismissal.html

Gwendolyn I. Cooper v. Oak Rubber Company and John Doe, Supervisor, 92-4039 (United States Court of Appeals, Sixth Circuit 02 09, 1994).

Hussein v. Raban Supply Co, 95-15914 (United States Court of Appeals, Ninth Circuit 03 04, 1996).

Kenneth R. Yott v. NORTH AMERICAN ROCKWELL CORPORATION and International Union, United Automobile Aerospace and Agricultural Implement Workers of America, Local 887, 72-1383 (United States Court of Appeals, Ninth Circuit 08 21, 1979).

Religious Discrimination. (n.d.). Retrieved 02 01, 14, from U.S. Equal Employment Opportunity Commision: http://www.eeoc.gov/laws/types/religion.cfm

Resources. (14, 02 11). Retrieved from AAUW: http://www.aauw.org/resource/title-vii-of-the-civil-rights-act-of-1964/#titlevii5