Toy Company USA|
To:|John Johnny, CEO|
From:|---
||
Date:|7/9/2012|
Re:|Constructive Discharge of Former Employee. Research and Response.|
Comments:|Following your request to investigate how our company should respond to the recent claim by a former employee under Title VII of the Civil Rights Act of 1964 after our schedule policy change I have made several notes regarding how we should respond to their claim.A. Constructive Discharge: According to an article by the Denver Business Journal a person cannot sue for a constructive discharge. While this statement isn’t completely true, it is very difficult to prove Constructive Discharge, which means that an employee resigns because working conditions are so unpleasant or difficult that a reasonable employee would feel compelled to resign. The employee must provide evidence or notification, in writing, regarding the cause for them choosing to resign and then allow the employer fifteen days to respond, in writing, to those allegations. In order to prove that there was a constructive discharge the employee, or in this case the former employee, must “preponderance of the evidence that the articulated reasons are a pretext for discrimination” as noted in Duffy V. Paper Magic Group Inc. 1988. Also as noted in this case it is very difficult for the former employee to provide evidence that this was the case. In the United States Supreme Court decision in the Pennsylvania State Police V. Suders 2004 it was shown that the former employee, Suders, had failed to use the procedures that were set up by her employer to deal with the issue that lead to the suit for constructive discharge. If we have evidence that there was no formal complaint or report of our former employee then we are very likely to have the case ruled in our favor.B. There are several areas under Title VII of the Civil Rights Act of 1964 that are relevant to this situation. The Civil Rights Act of 1964 regulates employers and protects employees in the USA from workplace discrimination based on race, ethnicity, color, religion or gender. It also prohibits employment discrimination based on the same criteria. Regarding religion under Title VII of the Civil Rights Act of 1964 it is illegal for an employer to involve religion in the hiring process as it can be a factor which influences treatment in the workplace. C. In response to the former employee’s legal charge of constructive discharge it is my suggestion that we respond by providing evidence to the former employee and the legal professionals involved that the employee did not report the incident to the appropriate department, in our case our HR department, so that we could appropriately respond to their claim of Constructive Discharge. Also, I suggest that we provide evidence of cases which support the fact that an employee must report the incident and the employer must be given time to respond to the report. Since there is no documentation of a report being made this is our strongest point to make to legal counsel. Our official response should be written as such, “In response to our former employees claim of constructive discharge we are confident that we followed all regulations and guidelines set forth by Title VII of the Civil Rights Act of 1964 and that we have not created a work environment that would support the claim of Constructive Discharge. Had the former employee reported that the company policy was discriminatory we would have responded to ensure that they understood that it was not, or worked to find a common ground that made them comfortable to continue working, but no such report was made and therefore we did not have the opportunity to respond, and therefore the accusation of Constructive Discharge cannot be applied.” 1. Cases that support my suggestion would be Duffy V. Paper Magic Group Inc, (2004), Pennsylvania State Police V. Suders (2004), and Ledbetter V. Goodyear (2007) all were ruled in favor of the employer because of the lack of evidence to support that the employee reported the actions of the employer within the appropriate timeframe. In Duffy V. Paper Magic Group Inc, (2004) Duffy claimed constructive discharge from Paper Magic Group because of a variety of reasons including not being considered for promotions, negative remarks, overworking, lack of cooperation, and others, but in the end the court ruled in favor of Paper Magic Group because there was “no evidence that Duffy utilized an internal grievance procedure or requested a transfer within the company.” With Pennsylvania State Police V. Suders (2004) Suders made the claim of constructive discharge following her claim that she was repeatedly harassed but the court didn’t address the constructive discharge claim because she “unreasonably failed to avail herself (to) the Pennsylvania State Police’s internal anti-harrassment procedures.” Finally, with the case of Ledbetter V. Goodyear (2004) the claim was for discrimination and the course dismissed it because there was no report within the appropriate timeframe. All of these claims relate directly to our case as the employee made a claim but had no evidence to support it, and therefore the claims were dismissed.2. I recommend that our HR employees are fully aware that all complaints and reports must be made in writing within a timely manner and that the employer has up to fifteen calendar days to respond. By doing this I believe we can avoid legal issues with Title VII of the Civil Rights Act of 1964. By providing documentation of our efforts to educate our employees of our HR process we will have evidence that supports us in the case that someone files a claim and doesn’t have any record of making a report. This, as was shown in the three legal cases I mentioned in Section C2 of this memo, will provide grounds for dismissal for any cases provided without evidence. More importantly we would want our employees to feel comfortable so they will approach our HR department should any incidents arise. Because Title VII of the Civil Rights Act of 1964 is there to protect employers we must be very careful to not unintentionally create a rule that will discriminate unfairly. Moving forward it is my suggestion that our HR department work very closely with our legal council to review any and all rules to ensure we are maintaining legal compliance. In addition, I believe that our company policy regarding response to incidents is adequate to hold up in court should someone choose to file a claim without following our HR protocol. |

References:

Berger, B. (2001, October 14). 'Constructive discharge' a hard case to prove. Denver Business Journal. Retrieved July 9, 2012, from http://www.bizjournals.com/denver/stories/2001/10/15/smallb4.html?page=all

Civil Rights Act of 1964 § 7, 42 U.S.C. §2000e et seq (1964). Retrieved from Equal Employment Opportunity Commission website: http://www.eeoc.gov/laws/statutes/titlevii.cfm.
USLegal, Inc (2001). Constructive Discharge Law & Legal Definition. Retrieved July 9, 2012, from http://definitions.uslegal.com/c/constructive-discharge/
DUFFY v. PAPER MAGIC GROUP INC, Bernadine DUFFY, Appellant, v. PAPER MAGIC GROUP, INC., No. 00-2818. (Argued June 28, 2001. -- September 07, 2001)
Led-bet-ter v. Goodyear Tire & Rub-ber Com-pany, 550 U.S. 618, 128 S. Ct. 2162 (2007)
PENNSYLVANIA STATE POLICE v. SUDERS. No. 03-95.[->0], Supreme Court of United States. (Argued March 31, 2004. Decided June 14, 2004.)

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