Human Resources: Constructive Discharge* February 10, 2012 Memorandum # 1 From: Manager, Elementary Division To: The CEO Subject: Former Employee's Constructive Discharge Claim
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Background: Our company attorney notified me about a former employee who filed a claim against the company citing Title VII of the Civil Rights Act of 1964 for constructive discharge. Findings: A. How is constructive discharge as a legal concept relevant to the scenario? At the beginning of the New Year, we implemented a new shift policy to keep up with the company growth. We required employees in the production group to work 12-hour shifts with 4 days of work then 4 days off in a rotating shift, which means some of those working days fall into the employee’s religious holy day. The former employee quit after the implementation. This former employee is claiming a constructive discharge. Constructive discharge is one of the discriminatory practices wherein an employee is forced to resign because of perceived intolerable work environment and courts generally agree to the employee if they determine that a reasonable person would also feel same way if given the employee’s position (Dempsey, & Petsche, 2006). Also, courts usually require that the employee must show that the intolerable working condition with the intent of forcing the resignation was deliberate (Dempsey, & Petsche, 2006). Furthermore, it is the responsibility of the plaintiff (our former employee) to show prima facie evidence that indeed such discrimination has occurred (Gomez-Mejia, Balkin, & Cardy, 2009). Prima facie evidences in cases of religious discrimination usually include, first, the plaintiff had a genuine religious belief that conflicted with duties; second, the plaintiff informed the employer of the beliefs; and third, the employer subjected the plaintiff to discriminatory treatment (Gregory Lawson v. State of Washington, 2002). From my research analysis citing references below, constructive discharge did not occur and therefore recommend that we will defend our position in court. Section 703 (a) of the said act also talks about the unlawful employment practices of an employer as regards to discrimination of compensation, terms, conditions, and privilege due to an employee’s religion, or to limit the employment opportunities of the employee because of such employee’s religion (Gomez-Mejia, Balkin, & Cardy, 2009). C.1. Recommendation: Maintain that there was neither a constructive discharge that occurred nor violation of the Title VII of the Civil Rights Act of 1964. Our former employee bears the burden of proving prima facie case against us and will eventually fail. In Lawson v. State of Washington (2002), the state won over the plaintiff on a claim of constructive discharge on religious discrimination. Although the plaintiff showed that he has a genuine religious belief in conflict with his duties and informed them about his beliefs to his employer, the third prima facie of proving that he was discharged for failing to comply with the conflicting requirements was not accepted by the court because he basically quit. As for our case, proving this third prima facie would also be difficult as the former employee just quit and there was no intent on our part to discharge or discipline based on religion. The change of shift policy was for everyone in the production staff and not just the former employee. Further, as per the record of this former employee on my file, the company was never informed about the religious belief that is sincere and genuine to be in conflict with the duties, so the other 2 prima facie evidences would also be hard to prove in court. Our former employee quit and there was no motive of deliberate discharge. In David A. Goldmeier and Terry C. Goldmeier v. Allstate Insurance Company (2003), the Court of Appeals for the 6th Circuit dismissed the plaintiffs’ complaint for religious discrimination. Allstate planned to require offices to remain open on Friday and Saturday but the Goldmeiers, who are licensed insurance agents of the company, resigned because being Sabbath-observant Orthodox Jews, they can’t go to work on Fridays and Saturdays. The courts found out that the Goldmeiers quit/ resigned and had not suffered discipline or discharge over the conflict. There is somewhat a clear similarity of this case to ours. Our former employee quit because of the rotating shifts which a workday can sometimes fall on a religious holy day, and was not deliberately discharged or disciplined over this conflict. Going back to the Goldmeiers’ case, at least their religious beliefs were known to the company and the latter even made arrangements or efforts to work it out, like hiring licensed insurance agents to work on those days that the couple cannot work due to religious holy days, but still the couple quit and claimed constructive discharge. In our case, there was no effort on the part of the former employee to talk to us about the religious beliefs. We can show to the court that the accommodation of a religious practice would result to undue hardship for our company. We are doing the shift change to accommodate our growth. Not doing so would result to catastrophic financial losses because of lost opportunities. In Equal Employment Opportunity Commission v. Townley Engineering & Manufacturing (1988) the Court of Appeals for the 9th Circuit granted EEOC’s motion for summary judgment on 2 issues regarding religious service attendance of employees, but denied summary judgment on the constructive discharge issue on behalf of a former employee, Pelvas. Townley Engineering and Manufacturing, as a company borne out of faith in God, requires its employees to attend religious services and they are aware of the requirements by the time they get hired. The former employee, Pelvas, complained to the EEOC that the mandatory services are in conflict with his beliefs. One of the defenses that Townley used was the “undue hardship” if they accommodate religious beliefs of Pelvas, which would excuse him from attending the religious services. Townley lost in this argument because the court did not see undue hardship happening for the company if they not allow Pelvas to attend the services. For our situation, we can win in this case because our claim of undue hardship is valid, unlike the Townley’s. We needed this shift change because of business necessity. Not doing so would cause us undue hardship. Our workplace environment or the shift change itself is not abusive or hostile as to compel a person with similar beliefs to our former employee to quit. We should have seen all of our employees or those employees sharing same religious beliefs as our former employee to be quitting, but so far, it is only our former employee who quit after we implemented the measure. C.2. Future recommended steps to avoid legal issues around Title VII of the Civil Rights Act of 1964:
· Schedule meetings when major changes are to be implemented in order to get the employees’ input. In this way, if there are strong objections to the change, make necessary adjustments but not compromising the goal for the change. Also, empowering the employees to be part of the company’s decision-making would confer little resistance to the proposed changes. · As it is very likely that working on religious holy days for most employees will be here to stay, when interviewing for new employees, we should ask if they can work in such days without problems, then document. · If this present shift change will be implemented long-term, all employees must follow the same work shifts, that means, the office workers must also be working same shifts with the production staff, to avoid perception of bias. · If there is a possibility to return to the original work schedule of Monday to Friday, then hire new employees or move old employees that are willing to work on weekends and 12-hour shifts. Ensure that files related to the employee’s job interviews/ applications, performance evaluations, and employment decisions are documented and kept safe and intact. · The management staff must have regular monthly in-service training regarding these human resources and employment laws on the Do’s and Dont’s , and whatever updates that need to be discussed upon.

D. References Dempsey, G., & Petsche, J. (2006). Library Law: Constructive Discharge. Retrieved from http://www.nsls.info/articles David A. Goldmeier and Terry C. Goldmeier v. Allstate Insurance Company, 337 F.3d 629 (6th Circuit, 2003). Equal Employment Opportunity Commission v. Townley Engineering & Manufacturing Company, 859 F.2d 610 (9th Circuit, 1988). Equal Employment Opportunity Commission(EEOC). Federal Laws Prohibiting Job Discrimination, Q & A. www.eeoc.gov. Retrieved from http://www.eeoc.gov/facts/ qanda.html Gomez-Mejia, L., Balkin, D., & Cardy, R (2009). Chapter 3: Understanding Equal Opportunity and the Legal Environment. Managing Human Resources, 6th ed.(pp. 87-112). New Jersey: Pearson Educational. Gregory Lawson v. State of Washington, DJDAR 7791 (9th Circuit, 2002)