To: Company CEO

From:

Date:

Subject: How the company should respond to the employee’s claim of constructive discharge.

Constructive discharge is a legal concept that is part of the Federal Equal Employment Opportunity (EEO) Law, which prohibits job discrimination. This part of the EEO addresses changes in the policies/procedure in employment that result in creating an environment with the intention of targeting a specific person or groups to force them to quit or leaving any reasonable person no other choice but to quit. To establish whether this has occurred the courts have established two different criteria to judges these actions by. The first is the reasonable person standard. This is where any reasonable person would find these changes so unbearable that there is no other option but to quit to find relief from this oppressive environment, for example requiring employees to work 16 hours per day without any brakes. The second is if the employer has created the policies and/or procedures with the specific intent of causing an employee, or segment of employees, to quit; such as requiring all persons to work on religious holidays without any exceptions even though there is no true operational need to do so. It is not necessary for the situation to meet both of these criteria it must only meet one to be considered constructive discharge. In this case the former employee is claiming that the change in schedule would intentionally force them to work on religious holidays. Since they hold deep religious convictions they would not be able to comply and was left with no other option but to quit. Title VII of the Civil Rights Act of 1964 deals with laws that prohibit intentional and unintentional discrimination based upon race, color, religion, sex, or national origin. Constructive discharge rarely consists of just one area of Title VII; typically it will consist of two or more areas. In this scenario the employee is clamming that they are intently being discriminated against on the basis of religion by requiring them to work on religious holidays. In addition they are asserting that it qualifies as creating a hostile environment by signaling them out for scrutiny and disciplinary action if they do not follow these new policies. These factors combined create the situation in which the employee felt that their only recourse was to quit resulting in constructive discharge.

Under Title VII an employer is required to reasonably accommodate the religious beliefs of an employee or prospective employee, unless doing so would impose an undue hardship. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation. (eeoc.gov).

If a company is found to violate this act they will be required to pay monetary damages to make the victim whole, in addition, the company may be required to change or implement new policies and procedures. The scenario that has been presented falls short of the legal definition of constructive discharge. The company should seek an immediate summary judgment of dismissal from the courts for several reasons.

The employee had been given an abundant amount of time regarding notice of the upcoming change in the scheduling policy. This gave the employee ample time to be able to address their concerns regarding the impact that this new change will have on their ability to practice their religious beliefs. Since this issue was not mentioned in the simulation the assumption can be made that the employee did not raise any concerns until after the implementation if the new policy. Even after the policy took place they made no attempt to contact the company about the new policy, instead they just quite. Quitting without bringing the issue to the attention of the company in any fashion and failed to follow internal policies regarding employee HR concerns. This falls short of the constructive discharge and there by disqualifies them from falling into this class.
Employee to resign must first follow internal complaint procedures before resigning and asserting a subsequent constructive discharge claim against the employer. Reporting allegations of harassment and discrimination provides the employer notice and the opportunity to correct and eliminate any inappropriate supervisory conduct consistent with the objective of Title VII to avoid future harm. (102) Giving the employer an opportunity to take corrective action benefits the employee by enabling him or her to retain his or her employment status.( Suders v. Easton, 2003)

In the case of Webb v. City of Philadelphia case the Third Circuit Court of Appeals said that the Philadelphia Police Department does not have to change a dress code policy based on religious beliefs because it would cause undue hardship on the department (Webb v. City of Philadelphia, 2003). The requirement for the companies to implement a 12 hour rotating shift policy is not directed at any one person or a group of protected class in retaliatory fashion. The creation of this policy is in direct response to the increase of business and the need to ramp up production to meet demand. Not requiring this new shift policy will result in undue hardship on the company by creating grate financial harm. If the employee would have gone to the employer and requested accommodation for his religious beliefs and was denied that accommodation that would have qualified as grounds for constructive discharge. This was not the case; if the employee would have addressed their concerns with management the company could have made a simple and reasonable accommodation, such as to switch their shift on the times that it fell on a religious holiday with that of another employee who does not have a conflict working on those days. Falling to give the employer the opportunity to do so removes them from being able to prove a prima face case of constructive discharge.(Massachusetts Bay Transportation Authority v. Mass, 2008)

The company can take several steps to ensure that they do not violate Title V by implement policies and procedures that are specifically designed to prevent such occurrences. These policies and procedures should include what discrimination and harassment are and what the different types are. This will create an environment where this type of behavior is not tolerated. These policies need to be posted and easily understood by everyone in addition they must be made available to all employees to read and review at any time that may be need. All employees need to go through training as to what these policies are and how to prevent discrimination and harassment from happening. Along with this training there needs to be an internal procedure in place that will allow employees to report violations without fear of retaliation from other employees or management. Management needs to be given more in-depth training and be held responsible for reporting violations in a timely and accurate manner and take appropriate action as described by established company policies. With this framework in place it will greatly reduce the chance that a violation of Title VII will occurs and if it does they will be able to rectify the situation before it is elevated to the level of litigation saving the company a great deal of time and money required to defend itself in such a case, as well as, creating a more positive and productive work environment.

References eeoc.gov Federal Laws Prohibiting Job Discrimination Questions And Answers (n.p.). Retrved April 4th 2011 from http://www.eeoc.gov/facts/qanda.html
Massachusetts Bay Transportation Authority v. Mass. Comm. Against Discrimination, 879 N.E.2d 36 (Sup. Ct., Mass., 2008)
Suders v. Easton, 325 F.3d 432, 2003 (3d Cir. Pa., 2003)[->0]
Webb v. City of Philadelphia, 562 F.3d 256 (3rd Cir. Pa., 2009)

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