Constructive Discharge Research

CRunning head: CONSTRUCTIVE DISCHARGE RESEARCH

1

Constructive Discharge Research Richard Boyer JDT2 – Human Resources June 6, 2013

CONSTRUCTIVE DISCHARGE RESEARCH

2

Constructive Discharge Research The following research will summarize the concept of constructive discharge as it relates to the claim against the company. In addition, information from Title VII of the Civil Rights Act of 1964 will be discussed. The details will include areas Title VII of the Civil Rights Act of 1964 relevant to the claim. Finally, the document will include three legal references supporting the recommendations related to the research. Defining constructive discharge A general definition of constructive discharge is “when working conditions are so intolerable as to amount to a firing, despite a lack of a formal termination notice” (USLegal, Inc., 2001). With the court cases involved in this area of Title VII of the Civil Rights Act of 1964, the courts have created two tests to determine if the case has evidence of constructive discharge. These tests are the reasonable person test and the specific intent test. Test 1: The reasonable person test The reasonable person test states, “an employee has been constructively discharged if an employer's discriminatory acts result in working conditions so intolerable that a reasonable person in the employee's position would feel compelled to resign” (Finnegan, 1986, p. 563). An example of this test applied in a case is the Young v. Southwestern Savings & Loan Association (1975) where the employer deliberately made an employee's working conditions so intolerable that the employee was forced into an involuntary resignation.

CONSTRUCTIVE DISCHARGE RESEARCH

3

Test 1: The specific intent test The specific intent test states “not only that working conditions were so intolerable that a reasonable person would feel compelled to resign, but also that the employer created those conditions with the specific intent to cause the employee to resign” (Finnegan, 1986, p. 566). The example, which incorporated this approach, was the case of Muller v. United States Steel Corp (1975), which set the standard of the requirement of evidence showing the employer created the conditions with specific intent. The tests for constructive discharge within Title VII of the Civil Rights Act of 1964 are the focus of the related case against the company. The information on the case will be vetted based on case law and applicability to these tests to determine if constructive discharge has occurred. In the legal cases and recommendations below, these tests will be applied and referenced. Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964, also known as the Equal Employment Opportunity Act, was created and enacted for the prevention of employment discrimination on the basis of race, color, religion, sex, or national origin. Employment discrimination is defined as unlawful in Section 703 of the Act (FindLaw.com, 2013). As it pertains to the current case, the former employee is claiming discrimination based on religion, which then caused the individual to feel forced into resigning. It is this portion of the Title VII of the Civil Rights Act of 1964, which will be discussed in connection to the current case.

CONSTRUCTIVE DISCHARGE RESEARCH

4

The specific areas related to the case within Section 703 include the following items, which are fully defined in the Appendix. Table 1 Section 703 areas related to the current case from the Appendix Section Number (a)(1) Possible connection to the current case Discrimination against the individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual’s religion (a)(2) The limitation of the employee which would deprive the person employment opportunities or affect employment status based on religion (h) Application of different standards or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system that such differences are not the result of an intention to discriminate because of religion

According to the U.S. Equal Employment Opportunity Commission (2013), as it relates to the current case, “religious discrimination involves treating a person (an applicant or

CONSTRUCTIVE DISCHARGE RESEARCH

5

employee) unfavorably because of his or her religious beliefs.” In Table 1, the sections, which relate to the current case, involve a claim of religious discrimination, which in turn lead to the employee resigning. Section 703(a)(1) reads “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise 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” (See Appendix). In the simplest of terms, an employer cannot hire, fire or limit employment on the basis of discrimination because of race, color, religion, sex, or national origin. The current case will be attempting to claim the company used religious-based discriminatory practices of limiting conditions and possibly privileges of employment. This information will lead to the claim of constructive discharge based on discrimination of religious requirements. Section 703(a)(2) reads “It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin” (See Appendix). The former employee will be attempting to make a claim the company attempted to limit their employment for the deprivation of employment opportunities due to the religious needs. The current claim would apply the section to the reasoning behind the employee resigning. Section 703(h) reads “Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or

CONSTRUCTIVE DISCHARGE RESEARCH

6

merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in deter mining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d))” (See Appendix). This section will be a focus claim of the former employee. The current claim will attempt to show there were different standards, terms and conditions of employment due to religious discrimination. In addition, the claim could also point to the different schedule of the office personnel compared to the rest of the company. The current claim will use this section to argue for constructive discharge based on religious discrimination. Legal Case Reference 1 The following legal case information will demonstrate application of constructive discharge in similar situations. In the case of Jenkins v. State of Louisiana (1989), the plaintiff, Kevin R. Jenkins claimed discrimination by the State of Louisiana Department of Corrections on religious grounds. The suit stated that Mr. Jenkins felt he was discriminated on religion due to having to work on Saturday, which violated his faith. The court determined that Mr. Jenkins was not

CONSTRUCTIVE DISCHARGE RESEARCH

7

constructively discharged. In documented fact, the supervisors had made adjustments to schedules to accommodate Mr. Jenkins religious needs and followed procedures correctly. Recommendation 1 The recommendation utilizing the above case is that information on the current case be reviewed to determine if the former employee had requested specific days off for religious reasons within the new schedule. In addition, documents relaying the new work schedule should be gathered to determine if the work schedule rotation was flexible enough to accommodate the former employee’s need and was clearly defined. The details of the current case did not meet the reasonable person test (Finnegan, 1986, p. 563) and the specific intent test (Finnegan, 1986, p. 566) for constructive discharge as the company had made allotments for those employees to allow the employee to choose the work schedule based on the 4-12 work days and it did not single out any specific employee or intend to cause an employee to resign. The recommendation is to quote the Jenkins v. State of Louisiana (1989) case with supporting documentation to ask for dismissal for lack of meeting the requirements of constructive discharge. Legal Case Reference 2 In the case of Trans World Airlines, Inc. v. Hardison (1977), Mr. Hardison claimed religious discrimination by Trans World Airlines by forcing him to work on Saturday, which is the Sabbath day for his religion. In the case, it was determined Mr. Hardison was subject to the collective bargaining agreement and the seniority system agreed upon by the union and Trans World Airlines. The court also held that Trans World Airlines made reasonable efforts to

CONSTRUCTIVE DISCHARGE RESEARCH

8

accommodate Mr. Hardison’s religious needs and did not violate Title VII of the Civil Rights Act of 1964. Recommendation 2 The recommendation related to the Trans World Airlines, Inc. v. Hardison (1977) case is to determine if the former employee was subject to a specific contract or agreement which required following the new schedule or not. This again goes back to whether the new schedule was flexible and applicable to the former employee’s religious requirements in line with the employee contract. If it is determined that the schedule was flexible to the religious requirements and the employee contract applies to the new schedule then the case example applies to the current case. The recommendation is to quote the Trans World Airlines, Inc. v.

Hardison (1977) case with supporting documentation to ask for dismissal for the company’s reasonable efforts to accommodate and meets employee contract guidelines. This information will show there was no specific intent against the specific employee. Legal Case Reference 3 In the case of Ansonia Board of Education v. Philbrook (1986), the court found that an employer could not discriminate the use of paid leave for religious purposes as long as it did not create an undue hardship to the employer. The court determined that reasonable considerations of religious days off could be accomplished within the framework of the employer policy. Recommendation 3 The recommendation related to the Ansonia Board of Education v. Philbrook (1986) case is that reasonable accommodations should have been investigated if the former employee

CONSTRUCTIVE DISCHARGE RESEARCH

9

requested them. According to information given about the work schedule, as long as the 4 -12 hour days were accomplished within the week the restriction on what days the work was done did not apply. If an accommodation attempt can be documented, the employee did request the schedule adjustment, and the work schedule was able to meet the religious requirement then the case example would apply to the current case as the 4-12 hour work day policy allows for the consideration of religious days off within the framework of the policy. The recommendation is to quote the Board of Education v. Philbrook (1986) case with supporting documentation to ask for dismissal for the company’s reasonable efforts to accommodate in addition to the information of the previous recommendation. Recommendation to avoid Title VII of the Civil Rights Act of 1964 legal issues The possible related items listed within Table 1 could be avoided with company intervention and documentation. A clearly established and documented company equal employment policy should be implemented and distributed, if not already accomplished, with the assistance of legal and expert assistance. For Section 703(a)(1) and (2) referenced in Table 1, the documentation and policy change in reference to the employee work hours must be compliant to the Title VII of the Civil Rights Act of 1964. This would include an accommodation procedure for any employee requests based on legal accommodations for the Title VII of the Civil Rights Act of 1964 for schedule modifications. The current work hour policy, stated as a 4 day-10 hour work week which can be scheduled for any day or time, allows for reasonable and full accommodation without undue hardship to the company without discrimination to anyone. This information must be easily

CONSTRUCTIVE DISCHARGE RESEARCH

10

accessible to all employees, distributed to all, and referenced in the company equal employment policy. For Section 703(h) referenced in Table 1, the Title VII of the Civil Rights Act of 1964 clearly states the current work hour policy does not discriminate by intent. The work hour policy is applied to employees equally and is completely flexible for each employee’s schedule needs. Discrimination scheduling is not occurring with intent as long as there are reasonable accommodations to employee requests. The work hour policy is set for the benefit of the employee and the employer alike and allows for extreme flexibility and work accomplishment. To avoid legal issues in this case, the company should make every effort to inform and educate the employees on the work hour policy as it pertains to accommodation for the Title VII of the Civil Rights Act of 1964. This is as long as the accommodation does not cause “undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work” (U.S. Equal Employment Opportunity Commission, 2013). In addition to the previous recommendations, the following should also be utilized to eradicate possible discrimination within the company. • • • Train managers and supervisors on how to recognize religious accommodation requests Develop internal procedures for processing religious accommodation requests Facilitate and encourage voluntary substitutions and swaps with employees of substantially similar qualifications

CONSTRUCTIVE DISCHARGE RESEARCH

11

•

Train all current employees on a minimum of an annual basis the importance of Title VII obligations

•

New employment must include Title VII company equal employment policy training at the onset of employment The research summarized the concept of constructive discharge as it relates to the claim

against the company under Title VII of the Civil Rights Act of 1964. The details included areas Title VII of the Civil Rights Act of 1964 specifically relevant to the current claim. The document included three legal references with supporting recommendations related to the research. Finally, a recommendation with details to avoid legal issues for the Title VII of the Civil Rights Act of 1964 was given.

CONSTRUCTIVE DISCHARGE RESEARCH

12

References Finnegan, S. (1986). Constructive discharge under Title VII and the ADEA. The University of Chicago Law Review, 53(2), 561-580. USLegal, Inc. (2001). Constructive discharge law & legal definition. Retrieved from http://definitions.uslegal.com/c/constructive-discharge/ FindLaw.com (2013). Title VII of the Civil Rights Act of 1964: Equal employment opportunity. Retrieved from http://employment.findlaw.com/employment-discrimination/title-vii-ofthe-civil-rights-act-of-1964-equal-employment.html U.S. Equal Employment Opportunity Commission (2013). Religious discrimination. Retrieved from http://www.eeoc.gov/laws/types/religion.cfm Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (5th Cir. 1975). Muller v. United States Steel Corp, 423 U.S. 825 (1975). Jenkins v. State of Louisiana, 874 F.2d 992 (5th Cir. 1989). Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986)

CONSTRUCTIVE DISCHARGE RESEARCH

13

Appendix Section 703 of the Title VII of the Civil Rights Act of 1964 (a) It shall be an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or (2) to limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin. (c) It shall be an unlawful employment practice for a labor organization-(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; (2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

CONSTRUCTIVE DISCHARGE RESEARCH

14

(d) It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training. (e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, support ted, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. (f) As used in this title, the phrase "unlawful employment practice" shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management

CONSTRUCTIVE DISCHARGE RESEARCH

15

committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950. (g) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if-(1) the occupancy of such position, or access to the premises in or upon which any par t of the duties of such position is perform med or is to be perform med, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and (2) such individual has not fulfilled or has ceased to fulfill that requirement. (h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not

CONSTRUCTIVE DISCHARGE RESEARCH

16

designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in deter mining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)). (i) Nothing contained in this title shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. (j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admit- ted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available word k force in any community, State, section, or other area.