...Fordham Law Review Volume 55 | Issue 6 Article 5 1-1-1987 Constructive Discharge Under the ADEA: An Argument for the Intent Standard Ira M. Saxe Recommended Citation Ira M. Saxe, Constructive Discharge Under the ADEA: An Argument for the Intent Standard, 55 Fordham L. Rev. 963 (1987), http://ir.lawnet.fordham.edu/flr/vol55/iss6/5 This Article is brought to you for free and open access by The Fordham Law School Institutional Repository. It has been accepted for inclusion in Fordham Law Review by an authorized administrator of The Fordham Law School Institutional Repository. For more information, please contact melnick@law.fordham.edu. CONSTRUCTIVE DISCHARGE UNDER THE ADEA: AN ARGUMENT FOR THE INTENT STANDARD INTRODUCTION The Age Discrimination in Employment Act of 1967, as amended 1 (ADEA), prohibits employers2 from discriminating on the basis of age against individuals forty years of age or older.' An employer may not trine of constructive discharge,7 which occurs when the employer creates discharge4 an employee within the protected group based on his age, 5 except as provided by law. 6 In addition, the ADEA recognizes the docworking conditions so intolerable that a reasonable employee would be 1. Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. §§ 621-34 (1982 & Supp. III 1985)), as amended by Age Discrimination in Employment Amendments of 1986, Pub. L No. 99592, 100 Stat. 3342...
Words: 25744 - Pages: 103
...Officer (CEO) From: Middle Manager Date: Thursday, April 5, 2012 Re: Former Employee, Constructive Discharge & Religious Discrimination Lawsuit ____________________________________________________________________________________ When hired to work for a company every employee expects to be treated equally and fairly in part due to the Civil Rights Act of 1964. When an employer changes working requirements or conditions and the employee becomes unsatisfied with these changes they can either opt to work with the employer to fix the issues, and/or quit. In a court of law it can be very hard to prove an undesirable working environment due to the fact that everyone sees things differently and physical evidence is needed. No employer tries to discriminate against employees, however it can happen inadvertently. Constructive discharge can occur when an employee feels forced to quit because their working conditions are, or were made so unbearable that no reasonable person would stay. (Merriam-Webster, 2012) This usually includes but is not limited to hazards to life or limb, harassment, and negative change in pay or benefits. In many companies the employee must first attempt to speak with or notify the employer of issues they are having and allow time for the employer to rectify the situation while still employed for their claim to hold up in court (The Gale Group, 2002). Constructive discharge has, in recent years, became more prevalent in court cases where individuals quit their...
Words: 2223 - Pages: 9
...A former employee of our company has filed a claim with the EEOC that the company discriminated against him and due to this discrimination; the employee was forced to resign due to constructive discharge. The claim states that the constructive discharge violated Title VII of the Civil Rights Act of 1964. The former employee alleges that the constructive discharge was in correlation with religious discrimination based on a work schedule policy change. The former employee states that the change in the work schedule policy was discriminatory, because it required employees to work on a religious holy day and due to this change the employee was forced to quit. Constructive discharge in employment law is typically when working conditions are so intolerable that the employee feels compelled to resign (Constructive Discharge, n.d.). Constructive discharge is a discriminatory practice that forces an employee to resign due to perceived intolerability in the work environment. Courts will typically agree with the claim of constructive discharge, if the court determines that any reasonable employee in a similar situation would also feel discriminated against if in the former employee’s position (Ford, Notestine, & Hill, 2000). Courts also require that an employee show that the working condition was so intolerable and that the employer made it purposely so, it forced the employee to resign (Ford, Notestine, & Hill, 2000). The burden of proof is placed on the former employee...
Words: 1960 - Pages: 8
...Memorandum To: CC: Office of the Chief Executive Officer Office of the Vice President of Human Resources From: Date: Re: 4/2/2012 URGENT: Filed Employee Claim under Title VII of the Civil Rights Act of 1964, Constructive Discharge. I wanted to provide some background on Constructive Discharge under Title VII of the Civil Rights Act of 1964. Title VII was established for employees in the United States to protect them from workplace discrimination based on their race, color, ethnicity, religion gender and/or sexual harassment. Under the definition of Constructive Discharge, according to USLegal.com, an employer makes a working environment intolerable which forces the employee to resign. It further states that “evidence of objectively difficult or unpleasant working conditions to the extent that a reasonable employee would feel compelled to resign, if the employer has not been given at least 15 days’ notice by the employee that the employee intends to resign because of these conditions and the employer fails to respond to the employee’s claim”. (1) In this particular case, our former employee who resigned is alleging religious discrimination under Constructive Discharge due to a work policy change requiring employees to rotate their shifts which includes working on what may be considered a religious day. As an employer, the Company needs to “reasonably accommodate an employee’s religious beliefs” (2) and make reasonable accommodations to the work environment. At the time...
Words: 729 - Pages: 3
...A: Constructive Discharge As a Legal Concept As you know, recent company growth prompted us to make production schedule changes after the first of the year. Production employees are no longer working the standard Monday through Friday work week; instead, they are now working four 12-hour days with four days off. The four work days can occur any day of the week, Monday through Sunday. The entire production team is required to work this shift. Because of this schedule change, a constructive discharge claim has been filed against us by Thomas Thompson. Thompson feels we deliberately made his working conditions intolerable, namely because he now has to work on a religious holy day because of our mandatory shift change. Thomas saw the mandatory shift change as discriminatory, and he resigned, believing he had no other choice in order to practice his religion. Prior to the change in schedule, Thompson worked Monday through Friday with two days off on the weekend. This allowed him to observe his holy day on either Saturday or Sunday. By definition, constructive discharge occurs “when the employer, rather than acting directly, ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation’” (Young v. Southwestern Savings & Loan Association, 1975). Claims such as Thompson’s that end up in court are generally tested by applying the reasonable person test. According to The University of Chicago Law Review, “an employee...
Words: 1553 - Pages: 7
...Title VII of the Civil Rights Act of 1964, Constructive discharge To: Mr. Ben Levant, CEO From: James Bond Date: 7/10/2012 Re: Constructive Discharge – Evan Hallway Mr. Levant, Per your instruction, I investigated the claim submitted by our former employee Evan Hallway. Mr. Hallway is claiming that there was no other solution but to stop showing up for work based on the fact that he was asked to work on the weekends. According to Mr. Hallway, this represents a contravention to his principles and values and he is stating that work environment is unfair and it’s difficult to continue working in such environment. In order to elaborate and conclude on Mr. Hallway claim. Please allow me first to provide a synopsis on the Constructive Discharge and the Civil Rights Act of 1964 Constructive Discharge and Title VII: Constructive discharge is a legal concept that is part of the Federal Equal Employment Opportunity (EEO) Law, which prohibits job distinction and bias based on race, national origin, sexual preference, religion or disability discriminating against individuals because of their race, color, national origin, religion, or sex” (The U.S. Equal Employment Opportunity Commission, n.d.). Based on the labor law, a constructive discharge will take place if an individual’s job is impossible to perform that the normal person would abandon his post. Mr. Hallway is stating that his new schedule disabled him from showing up to work and to continue to be an employee of “Kids...
Words: 924 - Pages: 4
...Constructive Discharge: After conducting research on Title VII of the Civil Rights Act of 1964, it is important to understand the legal concept, “Constructive Discharge”, as it is extremely relevant to the employee’s claim. Constructive discharge is when an employee resigns from a job, claiming that the employer has made it impossible for the employee to continue working for the company. Because the resignation is not truly voluntary, it is considered termination or firing. In order to establish a constructive discharge claim, the employee must show reasonable evidence that the discharge occurred, also known as “prima facie”. To show prima facie, the plaintiff must show the following factors occurred: 1. The employee resigned directly because of a change in working condition or policy implemented by the employer (Niznik, 2012). 2. There was a “cause and effect” relationship between the resignation and the change in working condition or policy; both must have occurred within reasonable time of each other (Niznik ,2012). 3. Any reasonable employee would resign under the same circumstances because the change in policy or working condition was unbearable (Niznik ,2012). 4. The resignation was predictable – the employer intentionally implemented the change, knowing any reasonable would quit (Niznik ,2012). Although the employee can prove factors #1 & 2 occurred, it would be extremely difficult for the employee to prove that any other “reasonable” employee...
Words: 1470 - Pages: 6
...Manager, Elementary Division Date: September 17, 2013 Subject: Former Employee’s Discharge Claim Relevancy of Constructive Discharge We had a former employee file a claim against our company for constructive discharge under the Title VII of the Civil Rights Act of 1964. Constructive Discharge is “when a worker’s resignation or retirement may be found not to be voluntary because the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign” (http://www.dol.gov/elaws/eta.woon/glossary). We implemented a shift change at the beginning of the New Year because the company’s growth has increased greatly. The new shift change requires that production employee’s work four days and then get four days off. Because of this rotating schedule, employees are required to work some Sundays. Because of this change, the employee claimed that the shift change infringed upon her religious beliefs of Sabbath day observance. The former employee quit their job after we implemented the change. In order for the employee to persuade the court that our company created an intolerable work environment, he/she would have to prove that any reasonable employee would have to quit in his/her same situation. The majority of the time, employees have a difficult time proving that a constructive discharge occurred (http://www.justia.com/employment/firing-wrongful-termination). Also in order for...
Words: 1266 - Pages: 6
...MEMO To: Chief Executive Officer From: Elementary Division Manager Date: January 1, 2014 Subject: Former Employee, Constructive Discharge Claim Introduction Our attorney has notified me that a former employee has filed a claim against the company, citing Title VII of the Civil Rights Act of 1964, constructive discharge. Findings: A. Constructive Discharge Relevance During the first quarter of the New Year the company implemented a new production schedule as a result of company growth. Employees in the production group are now required to work 12-hour shifts, 4 days on and 4 days off. Because of this, some of the working days fell on the former- employee’s religious holy day. The employee in question quit shortly after the implementation of the new rule. The former employee has filed a constructive discharge claim because of the newly implemented rule. As part of my research, a constructive discharge claim occurs when an employee claims that their working conditions were so intolerable that he/she was forced to quit (Alexander Hamilton Institute, 2011). The plaintiff (our former employee) in this case will need to be able to show the Court that working conditions were not tolerable and forced him/her to resign their position on the production floor. In addition, the plaintiff will need to show prima facie evidence that the said discrimination actually occurred (legal-dictionary, 2014). In a case, Gregory Lawson vs. State of Washington 2002, it pointed out...
Words: 1514 - Pages: 7
...a. Explain how constructive discharge as a legal concept is relevant to the scenario. Under Title VII and the ADEA, a constructive discharge occurs if an employee resigns their position after being subjected to unlawful discrimination then the resignation may be found to be a “constructive discharge”. Most constructive discharges take place when employees resign because their employer's behavior has become so intolerable or made life so difficult that the employee has no choice but to resign. In some instances the employee must not only prove that working conditions were intolerable but they also must prove that employer created the condition for the intent of forcing that person to resign. In our scenario a production employee X insist that we have discriminated against him because we require that he work on a religious holiday. We have mandated that all production employees are required to work shifts that cover each day of the week based on manufacturing demands and financial considerations. If we change the policy for 1 employee we would also need to change it for all production employees or we could be open to discrimination complaints. Consideration for all production staff to excuse them days of religious celebrations would cause significant difficulties in staffing manufacturing lines and keeping up with productivity goals resulting in lost revenue and expenses. Regulations covered by the EEOC (Under Title VII of the Civil Rights Act of 1964) do include policies...
Words: 792 - Pages: 4
...Subject:Human Resources,Task1, Constructive discharge A constructive discharge occurs when an employee is legally justified in claiming that he was compelled to resign because the employer has made working conditions intolerable (By Gerard E. Dempsey and Janet N. Petsche August 1, 2006).In this situation, an employee resigns because the employer was unresponsive to a harassment complaint. Complaint is about policy requires employees to work on a religious holy day .In this scenario Discrimination is harassment on the basis of religion. Employees with written contracts of employment have been more successful in proving constructive discharge when their employers unilaterally change the nature of their jobs(By Gerard E. Dempsey and Janet N. Petsche August 1, 2006).If the employee has job agreement and description and that description includes work time then employer changed this work time and employee quit his job because of this reason that can cause employee sue the company. In order to prevent this kind of situation, employer should talk with employee about changing time shift or give permission to him during religious holyday. When employer hire their employee, he should come with agreement and job description otherwise this will cause problem every time. Human resource must make strong decision about their rules. May be source of problem is something else but employee approach the situation with discrimination. One of the possible thing is employee has...
Words: 1305 - Pages: 6
...SUBJECT: Constructive Discharge Claim It has come to my attention that a previous employee plans to file a constructive discharge claim against our Company under Title VII of the Civil Rights Act of 1964. He bases his suit on religious discrimination due to the new production schedule that has recently taken effect. In his opinion, the new production schedule requires employees to work on holy days thereby, discriminating against employees whose religious practice does not allow them to work on these particular days. The employee alleges that enforcement of the new policy forced him to resign his position before the effective date of the new schedule. Religious discrimination involves treating someone different due to their religious or cultural belief system. In business, it is unacceptable and unlawful to treat someone unfavorably because of their culture, religious beliefs, religion, or ethical and moral ideals. Constructive discharge is a legal concept adapted by the Federal Equal Employment Opportunity Law (EEO) that prohibits discrimination in the work environment. Constructive discharge addresses changes in policy or regulations in which an employee feels he is being directly targeted for a reason which would cause any prudent person no other recourse, with the exception of terminating employment. In other words, the employee feels as though he is being forced to quit. (eeoc.gov) Therefore, in order to sue the company, the employee must prove to the court that the...
Words: 703 - Pages: 3
...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...
Words: 1063 - Pages: 5
...the preliminary research regarding ITC's standing and options in regards to the recent Constructive Discharge allegation brought forth by former employee # 12345. I have included a summary, with details and explanation of findings following. Summary: ITC's position is a strong one with three main points in our favor to support our stance. 1. The move to change the production shifts to a rolling 4 day model is justified through increased demand. 2. The former employee took no action to address the change prior to resignation. 3. The change in required work hours is for all employees within that job classification. It is therefore recommended that ITC stand firm in their course to improve company efficiencies. Future actions may be better served by announcing possible changes of such a nature to the staff prior to implementation to allow for comment, as well as inclusion in an updated employee handbook prior to implementation. Supporting narrative and findings: At first glance, this instance bears the characteristics of a plausible charge of Constructive Discharge from the perspective of the former employee. In short, constructive discharge as a legal concept is relevant to this scenario, as the scenario itself bears several characteristics that may comprise a constructive discharge. Among these characteristics are: 1. Working conditions are unbearable. Constructive discharge occurs when an employee is forced to quit because the employer has made working conditions...
Words: 1000 - Pages: 4
...MEMO Civil Rights Act 1964 (Constructive Discharge) Schedule Shift beginning on Jan 1, 2013 (Work on a Religious Holy Day) Date: March 10, 2013 Dear Mr. CEO, Pursuant to the claim made against Toy Company, LLC (“TCL”) regarding constructive discharge and working on a religious holy day, of which it is a legal concept put into practice in 1964 under the Civil Rights Act (“CRA”). I have located a few items of interest that will allow us to respond with understanding and basic knowledge. Understanding Constructive Discharge: Constructive Discharge occurs when a company has created intolerable conditions for which an employee is to work. Unbearable conditions include but are not limited to discrimination or harassment, and negative change in pay due to non-work related issues listed three paragraphs down. Employees that feel they have been forced to leave (because of their choice, not that TCL has terminated them) this employment due to the decisions that TCL has made, therefore, causing the conditions to be awful enough that it is now too intolerable, can file a wrongful termination against TCL. To simply file doesn’t necessarily mean that they will be successful in their suit or claim. Areas Covered under Title VII of the Civil Rights Act that are relevant: Discrimination of race, color, religion, sex, and or National Origin, all of these are included in the CRA. Our recent employee feels he has been wronged per discrimination of religion. We should respond to this...
Words: 973 - Pages: 4
