Constructive Discharge Memo

Memorandum ToMike Bigg, chief executive officer FromHR Manager Date10/14/2012 ReEEO re rehabilitative DISCHARGE CLAIM Constructive tucker out Constructive discharge occurs when an employee is squeeze to furlough because the working conditions sport become unbear sufficient. According to Blacks Law Dictionary a constructive discharge is a margin of habit brought about by fashioning the employees working conditions so impermissible that the employee feels compelled to leave. These conditions would include curse or discrimination or receiving a cast out substitute in working conditions or his pay for reasons that argon non work related.A litmus test for this is to determine what a reasonable someone would do in this scenario. If a reasonable person would have resigned delinquent to the unbearable conditions, and if the employer had actual knowledge of the unendurable actions or conditions and could have remedied them impartd did non, then the employee would be consi dered constructively discharged. In a circumstance where an employee feels the employer make the job so unbearable that he cannot remain there, a illegitimate termination suit can be filed.In legal terms, being compelled to terminate is leg ally similar to being unfairly discharged. In the persona we are facing now, the complainant feels that our schedule change would not allow him to preserve his employment with us referable to the fact the rotating schedule would force him to once in a while work on his ghostlike holy day. In our situation, this law could have some merit if it can be proven that we changed the schedule in an attempt to target every specific individuals. In that case, we could be deemed at fault.However, due to comp each growth, the work schedule was modified to reflect a unsanded production requirement. Since the changes were due at one time to the need to change the undefiled production schedule and not aimed specifically at a superstar employee, th is situation should not apply. human activity heptad of the Civil Rights Act of 1964 Title sevensome of the Civil Rights Act of 1964 is an act that was passed by congress to provide citizens protection a crapst discrimination by employers based on race, worship, color, sex and internal origin.In Title heptad of the Civil Rights Act of 1964, the law contracts that it shall be an iniquitous practice for an employer to discharge any employee, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of his employment because of such(prenominal) individuals race, color, religion, sex, or national origin. This is the primary federal law that prohibits discrimination in the workplace. In basic terms, this act prohibits employers from making employment decisions based on race, color, religion, sex and national origin.Age discrimination and disability discrimination are not included in this act and are now covered by subseq uent laws enacted by congress. Title VII of the Civil Rights Act of 1964 relates directly to our case as the employee in wonder has charged that we violated his rights infra this act based on religion discrimination. His claim that we are making him work on his religious holy day brings Title VII into focus and it needs to be reviewed to see if his claim can be substantiated.Upon review of the entire operation and in light of the growth the social club is experiencing, it does not appear that we have violated his civil rights as claimed under this act. With all personnel being affected by the schedule change and each employee crossed equally in the scheduling, it would not seem probable that one individual has been singled out for his religious beliefs. Recommendation In reviewing the facts environ this case, it is apparent that we are not guilty of the charges levied against us and I rede that we proceed forward and litigate this case.Since the decision was make to change s hifts due to company growth and the need for a revised production schedule, I do not feel that we handled the situation incorrectly and recommend that we stretch on the same course. Making strategic operational decisions and mitigating supply kitchen stove process risks is an important part of the business model. Our decision was based only if on the need of the business to remain competitive in the marketplace, and not focused on changing our schedule to impede the religious freedoms any single employee.The only schedule that remained unchanged was for the office employees. Since the employee in question was not an office employee, and as we did not have any openings in that area, a move to the office would not be prudent or equitable for any other employees. Finally, at no point sooner the employee contacted the EEOC were we make aware of his religious beliefs and needs. Because of that lack of knowledge, we could not have made any accommodations for this employee to assist wi th his situation. We should feel comfortable saying the EEOC that we are not guilty of the charges that were alleged.Legal Support The most defining legal support that is available is the Civil Rights Act of 1964 itself. In Title VII of this Act, clear guidelines are given as to what protection employees are given against unlawful employment practices. In SEC. 2000e-2 of Title VII of The Civil Rights Act of 1964, it indicate that it shall be illegal for an employer todiscriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individuals race, color, religion, sex or national origin.This employee has alleged that he was forced to succeed the new policy on shift work that he was discriminated against as he would now be demand to work on his religious holy day. addresss stipulate that a reasonable person test should be utilized to help determine this. By using the reasonable person test would a reasonable p erson quit due to conditions that were intolerable at the workplace I would suggest that would not occur. Many passels religious holy days were affected by the new schedule as the schedule demanded a rotating quaternion day on, four day off schedule.While it may be inconvenient to some, it would not unavoidably require an individual to resign his position. This employee at no time aware the employer of any conflicts based on his religion prior to his resignation. There could nonetheless be the possibility of utilizing vacation or personal days when the religious holy days fell on specific work required days. In Lawson V. Washington, 2001, a state trooper cadet resigned after realizing he would have to salute the flag and swear an oath to the state two of which are against his religion. He felt he would be complete if he failed to comply with the academys manual.At no point did anyone in manipulate at the academy indicate that he would be terminated, although they also neve r indicated they would make any accommodations for him in regards to this issue. In this case, Lawson was able to make a prima facie case on 2 of 3 points. He was able to prove his religion was legitimate and the demands were based on that religion. Secondly, he did inform his employer of his religious beliefs and the onus was then on the employer to make reasonable accommodations for him. He could not prove the third point where the academy would have terminated his employment if he did not comply.In our case, the employee never made it known that his religion would not allow him to work on specific days. Because the condition was not known, accommodations would have never been made available to him. This point alone eliminates our responsibilities in this case. In Equal Employment Opportunity Commission, Plaintiff-appellant, v. University of Chicago Hospitals, Defendant-appellee, (2001) a case where an employee believed she was targeted specifically for her religious beliefs, even tually resigned due to the pressure and hostile surroundings she felt at work.Her employer made specific comments to her regarding her recruiting persons for employment from her church. The employer even told her passe-partout to fire her if she did not end the practice of recruiting from her church. The EEOC was able to prove constructive discharge, where the employee felt as she must quit to avoid being fired. However, the courts stipulate it must be proven that the constructive discharge was motivated by discriminatory intent. Basically, it must be proved that not only was she forced out, but the reason behind the action was religious discrimination.The courts disagreed with this point and believed that the infirmarys actions were not motivated by religious discrimination. The relationship of this case to ours is significant. While the complainant may believe he was forced to quit due to our perceived infringement of his religious beliefs, there was no precaution in regards to forcing any employee to leave because of their religious beliefs. In addition, since the employee never made it known his need for special accommodations, we would never have been able to look to this issue with him.Steps for the future We can take a number of travel to strengthen our defenses against violations of Title VII of The Civil Rights Act of 1964 in the future. A primary strategy is to do an internal review of all company policies and procedures to see if any potential risks can be identified (Jenkins, 2004). If they are, go can be taken to decrease the potential for exposure to lawsuits by eliminating practices that are deemed wrong. Another tactic is to implement a formal explosive charge system and encourage employees to make use of it.These systems could help us break-dance and rectify any problems, real or perceived, before they lead to lawsuits. prep all members of the management team in all aspects of Title VII of the Civil Rights Act of 1964 is an imperative step in a proactive stance against potential wrongdoing. Developing diversity committees could help the entire makeup gain a better understanding of the needs of employees. Effective intercourse is the final step to help avoid issues in the future and is equal to successful and happy employees.Open communication from employee to employer cannot be stressed enough. If we listen to our employees and treat them all fairly, avoiding harassment and discrimination charges in the future will be much easier and possibly eliminated at all. A regular review by the Human Resources department will be necessary to insure continue compliance with appropriate policies and procedures that will keep us from committing violations of Title VII.Annual harassment and discrimination retraining for all personnel will help everyone gain a better understanding on what is and is not acceptable and problems may be avoided. Finally, regular communication with the EEOC can help by reply any questions we mi ght have regarding the fair and equal treatment of all employees. Blacks Law Dictionary (N. D. ). Retrieved from http//thelawdictionary. org/search/? cx=partner-pub-4620319056007131%3A7293005414&038cof=FORID%3A10&038ie=UTF-8&038q=discharge&038x=0&038y=0 Constructive Discharge (N.D. ), Retrieved from http//jobsearch. about. com/od/jobloss/g/constructivedischarge. htm EEOC V. University of Chicago Hospitals 276 F. 3d 326 Lawson v. State of Washington, 319 F. 3d 498 Court of Appeals, 9th Circuit 2003 Title VII of the Civil Rights Act of 1964, SEC. 2000e-2. Section 703 Jenkins, Lin (2004), Avoiding title VII violations employment policies and procedures. Retreived from http//goarticles. com/article/Avoiding-Title-VII-Violations-Employment-Policies-and-Procedures/2759944/