Previous Employee Constructive Discharge Complaint

Memorandum

To: Senior Management

CC: Human Resources

From: Paul Tolman

Date: 6/9/2013

Re: Previous Employee Constructive Discharge Complaint

CONFIDENTIAL

I have been asked to do some research regarding the constructive discharge complaint that has been brought against us by our former employee after we enacted the policy change on our production work employees. The policy in question has to do with the schedules we now require our production staff to complete. Due to the growth of the company we now require our production staff to work four 12-hour shifts and then they have the next four days off. These work shifts can occur any days of the week Monday through Sunday. The office staff is not required to work this sift. They remain on the Monday through Friday shift working 8:00 am to 5:00 pm.

Constructive discharge is defined as an employee feeling they have been discriminated against by having the working conditions he or she is working in to be so harsh and intolerable that they are considered unreasonable to normal working conditions and therefore they cannot continue to work under these conditions so they resign their position. The distraught employee feels they have been forced to quit because of the circumstances they have been made to work in; so their quitting would be no different than being terminated from the company.

One issue to take into consideration in this case is how this employee resigned. Constructive discharge can only be claimed by an individual if one of the two things has not been done before the individual resigned. First there must be proof that a difficult or hostile condition exists in the work environment. There must be proof that a normal employee would quit under these same circumstances. Also the employee must give the employer 15 days' notice that the conditions are unacceptable and the employer must not respond within that time frame.

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. ("Society," 2013) This protection applies to employees of any company that employees more than 15 individuals and includes both state and local government entities. Equal employment opportunities can't be denied to any person based on any of the named reasons above. Not only can they not be denied for these reasons, they cannot be denied for a perceived racial group or any characteristic that might link that person to a specified race for example hairstyles, skin color, or facial features. Title VII prohibits organizations from discriminating against any individual in regards to recruiting, work assignments or schedules, any hiring or promotion procedures, transfers, performance measures, the general working environment, job training, any discipline or discharge of employees, wage or benefits, or any other term, condition or benefit of employment.

CONFIDENTIAL

Title VII of the Civil Rights Act of 1964 does state that our organization cannot discriminate against employees based on religion or religious beliefs. In our case we have not discriminated against anyone based on religious beliefs. We have mandated that all of our production staff work this new four on four off shift. It was not our intention to create hardships for our staff in making this change. The decision to move to this new shift was based on our company needs. Our production teams were not able to keep up with the demands on our business while working a normal 8 to 5 shift. If we were to take everyone's religious beliefs into account for our scheduling we could stand to lose money causing the company and undue expense. The EEOC states Title VII prohibits "denying a requested reasonable accommodation of an applicant's or employee's sincerely held religious beliefs or practices - or lack thereof - if an accommodation will not impose more than a de minimis cost or burden on business operations." ("Questions." 2011). In our case we do not have to accommodate this employee's religious beliefs because it would cause more than a minimum cost to our company in order to do so. We were also never approached with alternatives that would reasonably accommodate this employee and the company at the same time.

CONFIDENTIAL

In the Supreme Court case of Trans World Airlines, Inc. (TWA) v. Hardison the Supreme Court ruled in favor of the airline as the employee brought a case against them for religious discrimination. TWA had one of its manufacturing plants in Kansas City, Missouri. Hardison was employed there. This department operated 24 hours a day, seven days a week, 365 days a year. It was important to the plant that there be someone staffed in this area full time. After coming to work at TWA, this employee began to study the religion of the 'Worldwide Church of God'. The church taught that their Sabbath should be observed from sundown Friday evening until sundown Saturday evening. The members of this church were to refrain from working during that period of time. The work schedules were controlled by collective bargaining agreements and those included provisions that allowed schedule bidding based on seniority in the company.

There were no conflicts from Hardison's religious beliefs in the beginning due to his willingness to work the night shift and he had seniority in his area so he could avoid having to work on his Sabbath. The issue came up when he transferred to a different area that had a different seniority system in place. A need came up for Hardison to work a Saturday shift which created the conflict. TWA allowed the union to look for a change in his work assignment. The union refused to meet this request due to it violating the seniority provisions of their agreement. Hardison extended and offer to the company to work four-day workweeks as long as that would allow him to not have to work on Saturday. This proposal was rejected by TWA. The proposal would not allow for the full time coverage needed for the operation of the business. If Harden did not complete this shift then another manager or employee would have to cover this shift and it would cause hardship on the other areas of the company and could cause the company to have to pay overtime. An agreement could not be reached between the two parties and Hardison did not show up for his shift and was fired.

CONFIDENTIAL

A study by Pearce II, Kuhn and DiLullo (2005) found the following