Sub: Employee’s claim of Constructive Discharge
Constructive Discharge is any policy or enforcement that creates a working condition so intolerable that a reasonable person would be forced to resign from an organization.

This is to bring it to your notice that former employee Mr. Red Onion has recently filed a lawsuit against our organization under the section Constructive Discharge of Title VII of the Civil Rights Act of 1964. The law in this section pertaining to the claim submitted by employee is that the working condition in the company was intolerable in the form of humiliation, discrimination and harassment to an extent that forced him to resign from our organization. Mr. Red Onion quoted saying that he quit after the new policy came into existence that required him to work on 12-hours shift on any four days in week that can potentially conflict the days that is reserved to perform his religious duties. This change has made the working condition intolerable for the employee and was forced to submit his resignation from the organization.
Further, Title VII of the Civil Rights Act prohibits any employment discrimination based on color, religion, sex, nationality and protected activity. The resultant of such discharge is ideally staff quitting their job and become eligible make claims against the company.
Solely with respect to religion, Title VII upholds religious duties and practices that are both theistic and as well as non-theistic in nature - “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” (eeoc.gov 2011).
Title VII of Civil Rights Act also requires employers to accommodate request by staffs to practice their sincerely held religious beliefs and observances unless such practices would cause problems and conflict with normal business operations which according to Americans with Disabilities Act (ADA), is instead “significant difficulty or expense.”
Referring to ‘Title VII’s religious discrimination clause (EEOC.Gov, 2011), our organization should fairly accommodate employee's religious beliefs and faith and eliminate any conflict with work requirements. These accommodations include but not limited to – Accommodate religious holidays, flexible scheduling and modification of production schedule.
In general, anyone who wants to file claim discrimination against an employer or company based on religion, sex, nationality, race, color and age by an can submit discrimination charges with ‘Equal Employment Opportunity Commission (EEOC)’ which is an independent federal body that can enforces laws against such discriminations. The EEOC would further investigate such complaints and also, any retaliation by employers.
Since the process has already begun and EEOC has sent our company a copy of the charge, we are asked to provide a response and present any information that we believe to prove that such charges are inappropriate and we did not violate the law. Fortunately, The EEOC has notified our company that charge is eligible for mediation and has offered us an option of mediation to mutually settle the issues with employee before the investigation begins. Mediation provides the organization and employee who filed discrimination charges the opportunity to reach into mutually agreeable solutions before the EEOC investigations. If mediation could not bring about mutually agreeable solutions between two parties, the charges will be further subjected for investigation.
We should that it is unlawful on an organization to retaliate against such discrimination charges even if we think such charges are without merit. Instead, we will submit a response to EEOC pertaining to this charge.
In response to EEOC’s notification of constructive discharge claim by Mr. Red Onion, I am recommending the mediation to address the operational, legal and public relations (internal and external) components of making our response to EEOC as below.
Constructive discharge claim by employee can be tested in two ways: The Reasonable Person Test and The Specific Intent test.
The Reasonable Person Test requires plaintiff to prove that the new policy enforced is intended to create intolerable condition to him and there by company wanted the plaintiff to quit the job.
Specific Intent Test, implies that the company did not intend the employee to resign but wanted to stay and comply.
Establish evidences pertaining to the proposed working hours and shift change is with the intent to foster the company’s growth and company's behavior should not be perceived to be arbitrary, capricious, inequitable, intolerable or outside good industrial practice (Woods v WM Car Services – 1981).
Establish sufficient proofs and documentations to show that the new policy enforcement discussed with workers representatives and union officials and the change is not dramatic.
Finally, inform the employee union and representatives that the company is open to withdraw revised working hours upon representation that the policy is discriminatory and intolerable.
Company should establish the process for employees to report any discrimination or intolerance resulting from the working condition or policies. Company should assure it would accommodate employees’ religious faith/practices in the form of religious holidays, flexible scheduling and modification of production schedule and make provisions for employees to swap their shifts with other staff to facilitate a staff to accommodate his/her religious duties.