Mr. Jones,
As you are aware, a former employee has filed a claim with the Equal Employment Opportunity Commission (EEOC) against Toy Box Industries (TBI) under Title VII of the Civil Rights Act of 1964, constructive discharge, after a work schedule policy change. The employee, who quit after the policy change took effect, is alleging that the enforcement of the company’s new policy on shift work is discriminatory because the policy requires employees to work on a religious holy day. In the past, production employees worked Monday through Friday. As a result of company growth, the production schedule was changed at the beginning of the New Year, requiring employees to work 12-hour shifts with four days at work and then days off. The four workdays can occur any day of the week, Monday through Sunday. The entire production staff is required to work this rotating shift. Office staff members had no change in their schedule and continue to work from 8:00 a.m. to 5:00 p.m., Monday through Friday. As requested, I have done some initial research into how the company should respond to the employee’s claim.
Constructive Discharge
Constructive discharge is a legal term that references a situation in which an employee feels “no other choice” but to resign their position due to alleged intolerable working conditions such as workplace harassment or discrimination as defined under Title VII of the Civil Rights Act of 1964. Two Supreme Court cases in 1998 provided some guidance regarding employer liability and defense for Title VII claims, but failed to address the issue of constructive discharge and the employer’s ability to defend themselves against such claims. The issue was finally addressed in a 2004 case (Pennsylvania State Police V. Suders) when the Supreme Court “held that constructive discharge due to a hostile work environment attributable to a supervisor is a recognizable claim under Title VII” (Crumpacker & Crumpacker, 2007). The ruling also provided clarification on the employer’s ability to defend such claims, “unless the former employee resigned in reasonable response to an employer-sanctioned adverse action that changed the employee's employment status or situation” (Crumpacker & Crumpacker, 2007).
Constructive discharge may be relevant to this situation because the employee claims that the change in work schedule, which required the employee to work on a religious holy day, left him no other option but to quit. Since religious discrimination is a valid Title VII claim, this does warrant further review. However, the 2004 Supreme Court ruling puts some accountability on the claimant to prove that the work environment was so intolerable that the resignation was a fitting response (Crumpacker & Crumpacker, 2007). If the employee is able to prove the constructive discharge claim, he may be entitled to reimbursement of costs associated with the claim, punitive damages (including any determined “pain and suffering” caused by the discrimination), back pay and future pay. This presents a potentially expensive liability for the company and should be taken seriously.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 applies to employment decisions and states that it is an unlawful employment practice for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (Gomez-Mejia, Balkin, & Cardy, 2010). Title VII also states that it is unlawful “for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment … as a result of an intention to discriminate” (FindLaw, 2013). Therefore, when Toy Box Industries applied the new required work schedule to all production staff, the company was attempting to be compliant under Title VII by applying the standard to all affected employees, without special consideration to any one group. However, the company may have unknowingly violated Title VII by requiring employees to work on an observed religious holy day.
As relevant to this claim, the law requires an employer to reasonably accommodate an employee's religious practices, unless doing so would cause difficulty or expense for the employer. “This means an employer may have to make reasonable adjustments at work that will allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a co- worker so that he or she can attend religious services” (U.S. Equal Employment Opportunity Commission). Due to the 4 days on/4 days off schedule, the employee would have been required to work twenty-six days during the year on his religion’s observed holy days. Therefore, if requested, TBI must make reasonable accommodations to the employee’s schedule to accommodate his religious practices.
Company Response
Employee discrimination lawsuits can be extremely costly for a company. “Typical court awards to victims of age, sex, race, or disability discrimination range from $50,000 to $300,000, depending on the size of the employer” (Gomez-Mejia, Balkin, & Cardy, 2010). Even when the court rules in favor of the company, the company may still be out thousands of dollars in defense fees. In addition, the potential for negative publicity as the result of a discrimination claim can be detrimental to a company. If a company choses litigation, they must be absolutely positive they will win the case and be able to prove their innocence.
As relevant to this claim, the initial facts support the ex-employee’s claim of constructive discharge. This case may demonstrate unintentional discrimination, which is a type of adverse impact discrimination that occurs when the equal application of an employment standard (such as mandatory work schedule) has an unequal effect on one or more protected classes (Gomez-Mejia, Balkin, & Cardy, 2010). The company is required to make reasonable accommodations to accommodate religious practices. However, there is no documentation in the employee’s file that any such requests were made. Likewise, there is no documentation that the employee followed the company’s internal complaint resolution process. Therefore, the company may be able to defend themselves against the claim. Toy Box Industries should respond to the EEOC complaint by requesting litigation. Legal References
In Turpen v. Missouri-Kansas-Texas R.R. Co., the court stated that in order to prove constructive discharge, an employee must “show that the employee: (1) has a bona fide religious belief that conflicts with an employment requirement; (2) informed the employer of this belief; and (3) was disciplined for failure to comply with the conflicting employment requirement” (Turpen v. Missouri-Kansas-Texas R.R. Co., 1984). Turpen filed a constructive discharge claim against his previous employer due to religious beliefs, when a schedule change required him to work on his religious holy day. The court ruled in favor of defendant when the plaintiff could not prove that he was disciplined for failure to comply with the conflicting employment requirement. In the current EEOC complaint, there is no written documentation that the employee informed TBI of his religious beliefs in relation to the new shift schedule. Additionally, there are no disciplinary actions recorded in the employment file for his failure to comply with the new policy. In fact, the employee resigned before the new schedule even took place. Therefore, this case supports TBI’s ability to defend itself against the ex-employee’s constructive discharge claim.
In Junior v. Texaco, Inc., the court stated that a constructive discharge occurs when an employer "deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation” (Junior v. Texaco, Inc., 1982). Junior filed a constructive discharge claim against his former employer alleging racial discrimination when he was denied a promotion. However, the court ruled in favor of the defendant because Junior was unable to prove intolerable working conditions. In fact, review of his periodic performance reviews found that Junior had not met performance standards, which supported the defendant’s right to deny the promotion. Since Junior resigned in response to his performance review and not intolerable working conditions, he was unable to prove constructive discharge. This case supports TBI’s ability to defend itself against the ex-employees constructive discharge claim because there is no evidence that the company deliberately made the employee’s working conditions intolerable. In fact, the new work schedule was effective for all production employees and did not single nor show favoritism to any one employee.
In EEOC v. University of Chicago Hospitals, the EEOC argued in support of Victoria Leyva, whom the EEOC believed was constructively discharged from her job with University of Chicago Hospitals because of her religious beliefs. The Court of Appeals confirmed that the EEOC sufficiently demonstrated constructive discharge on the basis of religious discrimination in part due to the “Reasonable Person Test.” The Court agreed that the EEOC “sufficiently demonstrated that a reasonable employee standing in Leyva's shoes would have believed that had she not resigned, she would have been terminated” (EEOC v. University of Chicago Hospitals, 2002). The EEOC was able to provide significant evidence and testimony to support this claim. However, in the potential claim against TBI, there is no such evidence to support the ex-employee’s claim of constructive discharge. Therefore, Toy Box Industries will be able to successfully defend itself against the complainant in litigation. Legal Recommendation
There are many best practices that should be put in place in order to avoid future legal issues in regard to Title VII of the Civil Rights Act of 1964. While many of these practices are currently in place at TBI, it may require more clarification and education in order to truly prevent further liability in relation to all aspects of Title VII. Since Title VII claims represent a huge potential for financial and public liability, compliance should be a top priority for Human Resources at TBI.
HR should review current policies surrounding Title VII issues to ensure compliance. HR can work with the EEOC and the company’s legal department to confirm there is a clear anti-harassment and anti-discrimination policy in place. Theses policies must be visible and accessible to all levels of employees. This can be done at initial new employee orientation, department meetings, the employee handbook, and the company newsletter. “Effective training should address protections under Title VII, including responsibilities, responsive to societal and cultural shifts and their impact within a workplace; up-to-date legal and regulatory requirements; organizational policies; expectations and standards; reporting procedures; and how to access reporting procedures” (Crumpacker & Crumpacker, 2005). In addition, it is recommended that annual review and acknowledgement of the policies and education be documented for all employees. This should be incorporated as part of the annual review process.
In conjunction with the policies surrounding Title VII issues, there should be a clear, internal complaint process. Employees must be knowledgeable about this process and it should be reviewed at least annually. The process should include a chain of command for resolutions. In the 2004 Suders ruling, the Supreme Court declared that an employee must first follow any internal complaint procedures before resigning and successfully asserting a constructive discharge claim. This gives employers the “right to correct existing problem and avoid future harm but, many employees often fail to report, due to fear, lack of awareness, or general mistrust of management” (Crumpacker & Crumpacker, 2005).
When an internal complaint is filed, HR has several responsibilities. Investigations should be conducted promptly and confidentially. There should be no repercussions for employees that file a complaint. The rules should be the same for all levels of the organization; there should be no exceptions to policies. If there is a potential for a conflict of interest (such as a complaint within the HR department), careful considerations should be made to have the investigation conducted by another appropriate internal department (such as Administration) or an independent, outside HR agency. Proper documentation should occur at all levels of the investigation and should be maintained in the employee’s file.
Annual surveys can provide feedback on the effectiveness of HR policies and procedures. They “provide insights into employee and management perceptions of workplace conditions, culture, and environment” (Crumpacker & Crumpacker, 2005). This could be incorporated as part of the annual Employee Satisfaction survey. The survey should be anonymous and action plans should be developed in areas where the company does not receive acceptable responses. This will allow the company to proactively improve policy education and the complaint process, and “provide a rebuttal to assertions that efforts to eliminate harassment or discrimination are not sincere” (Crumpacker & Crumpacker, 2005).
Finally, as a best practice, HR should conduct an exit interview with all employees, regardless of the reason for resignation or termination. This allows HR to collect and document any additional information for the departure and to identify any potential for a claim related to Title VII. By implementing these recommendations, Toy Box Industries can likely avoid any future legal issues related to Title VII of the Civil Rights Act of 1964.
Works Cited
Crumpacker, M., & Crumpacker, J. M. (2005, March 13). Washburn University. Retrieved January 11, 2014, from Constructive Discharge Under Title VII: What human resources practitioners need to know: http://www.washburn.edu/sobu/faculty/crumpacker/PDF%20files/Oxford%20Presentation.%20March%202005-2.pdf

Crumpacker, M., & Crumpacker, J. M. (2007). The U.S. supreme court clarifies constructive discharge under title VII: Responsibilities & opportunities for human resources practitioners. Public Personnel Management, 36(1), 1-19. Retrieved from http://search.proquest.com/docview/215944833?accountid=42542
EEOC v. University of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002)
FindLaw. (2013). Title VII of the Civil Rights Act of 1964: Equal Employment Opportunity. Retrieved January 11, 2014, from FindLaw: http://employment.findlaw.com/employment-discrimination/title-vii-of-the-civil-rights-act-of-1964-equal-employment.html
Gomez-Mejia, L. R., Balkin, D. B., & Cardy, R. L. (2010). Managing Human Resources (Sixth Edition ed.). Upper Saddle River: Prentice Hall.

Junior v. Texaco, Inc., 688 F.2d 377, 379 (5th Cir.1982) (quoting Young v. Southwestern Sav. and Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975))
Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir.1984)
U.S. Equal Employment Opportunity Commission. (n.d.). Prohibited Employment Policies/Practices. Retrieved January 5, 2014, from U.S. Equal Employment Opportunity Commission: http://www.eeoc.gov/laws/practices/index.cfm