The employee is claiming the company violated the employee’s Civil Rights under the Civil Rights Act of 1964, by requiring him to work on a religious holy day. The employee is asserting this made it intolerable for him to continue to work here, forcing him to quit his job. In order to establish a response, the company must determine if an evaluation of accommodating employee shift changes was conducted, and if it found it to be an undue hardship for the company. If this is not the case, the company must determine if the employee requested an adjustment to his new work schedule. The company should consider countering the employee’s claim if the shift change evaluation determined an undue hardship, or the employee did not request a shift change. If the evaluation was not conducted and the employee requested a shift adjustment, the employee may have grounds for a claim. The company should consider implementation of an accommodation policy to affirm compliance with the Civil Rights Act of 1964.
Constructive discharge is a legal construct to describe the situation where the employer makes the workplace environment intolerable to the employee so that the employee will quit rather than being fired. The intent of constructive discharge in this instance is to justify the act of the employee quitting his job equivalent to the action of the employer firing the employee (Dempsey & Petsche, 2006). The definition of intolerable is based on the rationality of a reasonable person. The legal concept of “the "reasonable person" is used to define the standard of care that triggers liability” (Solum, 2011). In our situation it means would a reasonable person find the work change policy harassing and coercive. The employee is attempting to assert that the triggering event for the constructive discharge claim was a violation of his Civil Rights by the company.
Title VII of the Civil Rights Act of 1964 prohibits certain employers from discriminating against protected classes, including, but not limited to, Race, Color, Sex, Age, Religion, National Origin, and Disability. For the protected class of Religion, Title VII states that covered employers shall not treat employees differently based on religion, harass employees based on religion, deny reasonable accommodation requests, or retaliate against employees (EEOC, 2012). Title VII also provides provision for compensation of back pay and assessment of punitive damages.
Changing employee work hours is not of itself a violation of Title VII (Grube v. Lau Industries, Inc., 2001), but it is important to know if providing employee work schedule flexibility was evaluated prior to the implementation of the new work schedule. “Title VII requires employers to reasonably accommodate an employee's religious observances and practices unless to do so would be an "undue hardship"” (Runkel, 2006). If it was researched and proven to be an undue hardship, the company should consider countering the claim. If work schedule flexibility was not assessed, it may be untenable to assume a definitive position. It may be perceived as disingenuous to conduct an evaluation after the fact that discovers undue hardship. The company should investigate to determine if the employee requested a shift change. If the employee requested and was denied reasonable accommodation, the company may be at risk of liability. If the employee did not request, and therefore was not denied, a reasonable accommodation, the company should consult legal counsel and consider countering the employee’s claim (Taylor v. Principal Financial Group, Inc., 1996). All production staff was treated equally under the new work schedule (Trans World Airlines, Inc. v. Hardison et al., 1977), the employee was not harassed, the employee did not make a reasonable accommodation request (Taylor v. Principal Financial Group, Inc., 1996, and the employee was not retaliated against. (EEOC, 2012)
The Seventh Circuit Court of Appeals in (Grube v. Lau Industries, Inc., 2001) posited that changes in work hours themselves do not constitute intolerability in the workplace, based on the premise that a reasonable person would not find this offensive enough to support constructive discharge.
In (Taylor v. Principal Financial Group, Inc., 1996) the Fifth Circuit Court of Appeals upheld the lower court’s decision that the employer is not obligated to provide reasonable accommodation if the employee does not notify the employer of the request and the employer is unaware of the need for accommodation. While this is an Americans with Disabilities Act (ADA) case, the underlying premise is valid that the employee must make the accommodation request if it is not apparent to the employer that an accommodation is necessary or needed.
The Supreme Court upheld in (Trans World Airlines, Inc. v. Hardison et al., 1977) that an employer does not have to provide days off for employees to respect their holy days if it creates undue hardship for the employer. The employer is not required to institute a policy of special treatment for an employee at the expense of other employees. The court affirmed that the purpose of Title VII is to decrease discrimination, not to create discrimination against some employees in order that others can respect their own holy days.
The company should consider the following actions to reduce risk exposure to legal issues with Title VII of the Civil Rights Act of 1964. This simplest measure is to require management training in Title VII compliance. Implement a communication policy to resolve employee workplace concerns before they escalate. Institute a process to acknowledge and document employee workplace concerns, communicate the resolution process, and file results. Focus on providing reasonable accommodation to employee’s workplace requests. Establish a team to analyze the feasibility to allow employees shift day flexibility, to trade shifts among each other, and to change or transfer job positions.
References
Dempsey, G. and Petsche, J. (2006). Library Law: Constructive Discharge. Retrieved from http://www.nsls.info/articles/detail.aspx?articleID=80\
Grube v. Lau Industries, Inc., 257 F. 3d 723 - Court of Appeals, Seventh Circuit (2001)
Runkel, R. (2006). Religion discrimination #24. Retrieved from http://www.lawmemo.com/101/2006/01/religion_discri.html
Solum, L. (2011). Legal Theory Lexicon 004: The Reasonable Person. Retrieved from http://lsolum.typepad.com/legal_theory_lexicon/2003/10/legal_theory_le_3.html Taylor v. Principal Financial Group, Inc., 93 F. 3d 155 - Court of Appeals, Fifth Circuit (1996)
Trans World Airlines, Inc. v. Hardison et al., 432 U.S. 63 (1977)
U.S. Equal Employment Opportunity Commission. (2012). Religious Discrimination. Retrieved from http://www.eeoc.gov/laws/types/religion.cfm 