Introduction
The Civil Rights Act 1964 came at a time when the United States was embracing the initial steps of affirmative action. For this reason, the Act was set to prohibit employers from performing any version of discrimination against employees based on variables such as race, gender, color, religion, and national origin. Specifically, within the Act, Title VII was most direct in its antidiscrimination provisions.
The Act created obligations for employers concerning the treatment of their own employees as well as the corresponding duties of employees towards their employers. However, since the central goal of the Act was to cushion employees from discrimination, it leaned towards imposing obligations on employers more than it sought compliance with employees, with specific exceptions. One such exception is critical for the present scenario and it deals with “failure to accommodate” claims.
As noted above, this statute imposes many obligations on employers and one such obligation is the requirement that they accommodate their employees’ needs concerning religious observance or beliefs if the said requirement does inconvenience by causing “undue hardship.” In the quest to further define undue hardship, courts have allowed two essential determinants, first is cost for which the set standard is that the accommodation should not surpass “de minimis” costs, which is an amount calculated by evaluating the cost that this particular employer shall incur as well as the number of employees that shall need to be accommodated. Notably, administrative costs incurred while rescheduling shifts is deemed “de minimis” (Brougher, 2007, p. 69).
Secondly, courts have included security rights as a justified impediment to accommodation of employees’ wants or needs. This requirement holds if granting the accommodation sought would interfere with a preset seniority system. There seems to be a particular reverence accorded to seniority systems. The Supreme Court in Trans World Airlines v Hardison 432 U.S. 63 (1977) noted, “The employer did not violate Title VII when it used a religiously neutral seniority system to determine employee work schedules” (Brougher, 2007, p.67). This stance is somewhat solidified by the absence of a requirement in Title VII for seniority systems to let up and accommodate employees for religious observance.
At 29 CFR S 1605, 2 (e) (2), the statute provides that seniority systems create, “a neutral way of minimizing the occasions when an employee must work on a day that he would have preferred to have off” (Cihon & Castagnera, 2011, p.203). Consequently, in the scenario that informs this paper, the established claim is one for “failure to accommodate” a former employee’s religious observance and this caused the person to resign, thereby giving rise to a constructive discharge. It follows that a number of pertinent issues call for further discussion and this shall be done in the subsequent sections of this paper.
These issues include what is a constructive discharge and what are the relevant legal elements? Secondly, how does the Title VII apply to the context of this scenario? Under this second question, matters such as disparate treatment, disparate impact, harassment, and failure to accommodate shall be discussed and compared, including the building elements of each of those. Third issue is the way forward for the company against whom the suit is being brought. This area shall be a procedural outline justified with brief explanations. After this, the paper shall look into recommendations for avoiding similar trouble in the future before concluding.
Business Memorandum
TO: The CEO Barbie World
FROM: Floyd Jumper, the Elementary Division Manager
DATE: 10 May 2013
SUBJECT: Claim on Constructive Discharge
The undertaking of writing this memorandum is guided by the claim that has recently been lodged against the company for constructive dismissal consistent to Title VII of the Civil Rights Act 1964. The former employee in question, who is the complainant in this case, purports to have been compelled to resign after the introduction of the new schedule policy that required the entire production stuff to work for 12-hour shifts for four days a week then take four days off.
The four days could fall on any day between Monday and Sunday. The complainant stated that the reason she resigned was that she was required to work on a holy day and so the suit is being brought in the form of a complaint for alleged religious discrimination. Other important facts in this case include that the office staff members were to maintain the 8.00am to 5.00pm schedules and work from Monday to Friday.
Additionally, the reason why this new work schedule policy was introduced was due to an increase in production work. Finally, the complainant did not inform her employer of her wish to be accommodated concerning the holy day in view of the new working schedule and to the best of our knowledge; she simply resigned voluntarily upon learning about the new shifts. In addition, for being up to date with the evolution of the law, it is noteworthy to note that the Civil Rights Act of 1991 expanded the application of the Civil Rights Act of 1964.
Since then, the enforcement body, which is created under Title VII, namely the Equal Employment Opportunities Commission, has since provided several guidelines on the application of Title VII provisions, with those on religious discrimination having come out in early 2008. This article uses the latest guidelines on religious discrimination as well as case law to solve the case scenario that is presented.
Constructive Discharge
Constructive discharge may also be referred to as “involuntary quitting”. It refers to a scenario whereby an employer comes up with a policy or enforces a policy that indirectly exposes employees, who belong to a protected class to suffer intolerable conditions at work and thereby have to quit involuntarily. The “protected class” refers to the various tenets that Title VII provides for protection against discrimination, which includes sex, natural origin, race, color, and religion. In contemporary times, this diversification has increased to include other minorities such as homosexuals; however, what remains the same is the meaning of a protected class.
An important element of constructive discharge is that the employee ought to have resigned from or quit the employment and not been fired or terminated as was established in the case of Drummond American LLC v. Share Corporation, 2009 U.S. Dist. LEXIS 105965. This scenario was a case on restrictive contracts in which the defendant sought to use constructive discharge as a defense only to fail for her services were terminated by her former employer as opposed to her quitting. It may be prudent to note here that constructive discharge claims may also be referred to as failure to accommodate claims, especially with reference to religious discrimination.
In Turner v. Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 1244-1245), it was established that constructive discharge is construed as a ‘firing’ more than a resignation. To prove it, the plaintiff needs to show that the employer’s actions are so oppressive to the employee that even if the employee decided to quit, it is due to the harsh conditions that the employer applies thus making the employment insufferable. As noted above, the Civil Rights Act 1964 imposed various obligations on employers instead of abolishing discrimination and one such obligation was the requirement that an employer ought to accommodate an employee’s religious observance to whatever extent possible, as long as such accommodation does not result in ‘undue hardship’ for the employer.
Applicability
Constructive discharge is the most applicable claim in the scenario that is presented. In a bid to justify this statement, a brief review of the other possible claims is necessary:
Disparate Treatment
This claim is a possible avenue for raising alarm over discrimination, but it applies to employees who have had their engagements terminated or their job applications rejected on discriminatory grounds. There are two methods of proving a claim of disparate treatment and the first is the direct method, which hinges on circumstantial evidence, such as suspicious timing or the ambiguous statements made to colleagues of the same protected class as was seen in Troupe v, May Department Store 20F. 3d. 734. Alternatively, it may be inferred from the better treatment of similar employees who do not belong to the protected group in comparison to harshness extended to the same employees from a protected class as was evidenced in Marshall v. American Hospital Association, 157 F. 3d. 520.
The second method is the McDonald Douglas Burden Shifting method, which was established in McDonald Douglas v. Green 411 U.S. 792 (1973). This method places two critical requirements on the plaintiff, namely that she:
- establish a prima facie case of discrimination, which means that she proves that she was a member of the protected class, she was qualified for the position and the job, and she was rejected or terminated. Finally, either the position remained vacant or it was awarded to a member of the non-protected class (note that the employer may notify the court of his reasons for termination or rejection to prove that it was non-discriminatory, and to do so, she need not adduce admissible evidence).
- The employee may rebut the employer’s proffered reason. In so doing, all she needs to do is to prove that the proffered reason was untrue and pre-textural. She may also adduce additional evidence to prove that the discrimination was intentional.
Disparate Impact
This claim simply refers to the use of a work policy that is superficially non-discriminative, but which in effect has adverse repercussions on the members of a certain protected class. In the quest o prove this assertion; the plaintiff has to adduce statistical comparisons proving that the action complained of has adverse effects on the protected class. The employer may rebut this claim by insisting that the practice complained of is “job related for the position in question and consistent with a business necessity as provided for under 42 U.S.C. S 2000 2 (k) (1) (A) (1)” (Rosenthal, 2012, p. 467).
From the above analysis, it is apparent that none of these avenues would have been a viable option for the ex employee in question and thus it leaves constructive discharge. In a bid to bring a successful claim, the employee should discharge her burden of proof by proving:
- an existing conflict between her religious observance or practice and her employment obligations.
- That she informed her employer about the conflict;
- the employer refused to acknowledge this request for accommodation and she was consequently penalized or she quit following how intolerable work became due to the conflict.
It shall please the CEO to know that bearing in mind that the preponderant assumption is that this former employee did not inform anyone about her preference not to work on the holy day, the claim brought under constructive discharge is a flimsy one at best, and thus it is likely to fail.
Title VII on Religious Discrimination
Title VII proscribes favoritism based on “race, color, sex, natural origin, and religion concerning hiring, promoting, terminating, and compensation among other aspects of employment” (Rosenthal, 2012, p. 461). The jurisprudence of this statute as provided for in 42 USC S 2000 e (b) “covers employers with more than 15 or more employees working each working day for twenty (20) or more calendar weeks in the present or preceding year” (Rosenthal, 2012, p. 462). The term ‘person’- is included as part of what defines ‘employer’ and it means corporations, partnerships, or legal entities. Exempted employers include bona fide owners of private membership clubs, Indian Tribes, and some specified religious organizations among others.
A quick review of the 2008 Guidelines provided by the EEOC to direct employers and courts on the extent of this accommodation indicates ‘religion’ ought not only be construed in thin marginal lines of organized and established faiths such as Islam, Judaism, and Christianity. In addition, it could also include, “an individual’s ultimate ideas” about “life, purpose, and death, moral or ethical beliefs as to what is right and wrong and which are sincerely held with the strength of traditional religious views” (Pearce, Kuhn & DiLullo, 2005, p. 259). 29 CFR S 1605, 1. Part 49 USC S 2000 e (j) provides for the exception to accommodation as “undue hardship” to the employers, which as noted above, ought to be interpreted very narrowly to include only seniority systems and costs beyond the de minimis threshold.
The remedies that are provided for under the Act for wrongful termination of employment include Reinstatement, Back pay, compensatory and punitive damages, front pay and loss of future earnings – especially where reinstatement is difficult or impossible and reputation in the profession has been damaged, and attorney’s fees and expert witness’ fees (reasonable amounts). These remedies are highly discretional to the presiding court and they are normally arrived at after the application of equitable principles.
The proffered defenses for a claim brought pursuant to Title VII include the following.
- the Statute of limitations, which is two fold as it encompasses both the requirements that the complainant file a law suit within 90 days of receiving the ‘right to sue letter’ from the EEOC, as well as the 300 days threshold since the commission of the alleged discriminatory act for filing a suit.
- The defendant may also claim that the “discrimination being complained of is beyond the scope of the charge as was initially filed and approved by the EEOC” (Rosenthal, 2012, p.458).
- The defendant may claim that it is a mixed motive case, as in the one in the scenario provided, in which case the policy that was introduced was not meant to be discriminative, which is to say that the employer had no intention of being discriminative, but was only seeking to improve the production of the company. Alternatively, still citing mixed motive, the defendant may prove to the court that even without the discrimination perspective, the employee would still have received the same adverse effect. In such a case, the court shall not order restatement or punitive awards, instead, it shall settle for declaratory relief, or at times interim injunctions as its discretion dictates.
Applicability
The effect of Title VII on the given scenario is to raise the question on the validity of the claim instituted against the company. Section 703 of Title VII outlines unlawful employment practices and among these is “discrimination with respect to compensation, terms and conditions or privileges of employment” (Cihon & Castagnera, 2011, p.192). The former employee was indeed discriminated upon by the work schedule policy, which was introduced after she was already a part of the company. The policy seemingly did not take into account her religious views while coming up with the policy; therefore, in the end, a policy that was conflicting with her religious inclinations was introduced.
However, the cardinal rule, as far as claims of failure to accommodate or constructive discharge is concerned, is that the employee should have importuned the employer for accommodation. After which the employer declined to accommodate despite the fact that such accommodation would not have caused him undue hardship, or responded to the request for accommodation in a harsh manner by either punishing or threatening the employee, thereby causing the employee to suffer intolerable working conditions that she could not sustain and so she had to quit. However, for the scenario provided, we are working under the assumption that the employee did not make a request for accommodation, which is detrimental to her claim because she has not established a clear case of segregation against her employer.
Another assumption that we are working under is that the company involved is not exempted from the effects of the Title VII provisions, which is to say that it is not a certain religious organization, or an educational institution or even an Indian tribe. With this notion in mind, we can safely conclude that the only reason why the suit shall not attach is the failure to prove a case by the complainant, whose failure was occasioned by the lack of making a request for accommodation to the employer. In addition, the reason for this costly omission is probably negligence on the employee’s part, which is what informs the next segment of this article.
Recommendation of the company’s response to the claim on constructive discharge
I am of the opinion that the company should respond to the claim by filing in a defense letter indicating that it intends to proceed with the case. The reason why I opt for this bold move is that the company has precedent on its side, which is the Supreme Court decision concerning constructive discharge as it is not one of the treacherous lacunae in law for there seems to be a trend in the determination of these cases.
This assertion explains why the test for establishing a prima facie case of discrimination has been laid down for close to half a century now, since the Trans World Airlines case in 1973. For the defenses that this company should use, I recommend that she apply all the three available defenses, and this choice is working on the assumption that this person is an ignorant employee who was not aware of her rights under Title VII.
Therefore, the probability is that she is probably late with the filing of the suit and has probably overreached the threshold of her capacity to sue in discrimination in this particular case, and so she may have included irrelevant charges. Finally, the surest defense that shall save the toy company is the one of the mixed motives for there is evidence to prove that there was no intention to discriminate when the policy was put in force and that the guiding principle was the need for expansion.
Supportive case law for recommendation
Trans World Airlines, Inc. v. Hardison 432 U.S. 63 (1977)
Probably this case shall win for the organization and against the employee. The courts in Trans were faced with the question of an employer’s liability upon the usage of a religiously neutral seniority system to come up with a work schedule for their employees. In the present case study, it is clear that such a system was employed with the only different coefficient or variable being the use of service production as opposed to seniority.
All the workers in production were expected to abide by the new policy as it did not discriminate and the structure of the policy was simple. The aggrieved employee only needed to seek for accommodation to be excused from this new regime. However, it is also worth mentioning that much as it may appear to be simple, courts will usually ask themselves whether, as noted above, accommodating one employee shall cause hardships to the firm. In this case, it may deduce that such an accommodation would lead to multiple requests from the other workers and that this would in turn lead to a sabotage of the entire policy. The courts would then have to award the aggrieved employee in damages because restitution would be adverse to the company policy.
Heller v. Ebb Auto Company 8 F.3d 1433 (9th Cir. 1993)
This case is very persuasive dicta with regard to the accommodation principle. The plaintiff was seeking a reversal of a previous ruling for his former employer. He had ceased to work after his boss refused to grant him leave to attend the Jewish ceremony of his wife’s conversion into the Jewish religion. She was converting as the children adopted their mother’s religion and if she failed to do so; her son would have been denied his bar mitzvah. The ceremony fell on days, which the company policy precluded taking leave, but initially the employer agreed to allow him two hours off on the day of the ceremony.
However, when the day came, the employer declined and made the employee choose between his job and his family. Upon choosing his family, the employer terminated his services. The ninth court in appealing this decision stated that as established in Trans, it was unlawful employment practice to refute reasonable accommodations except if they would cause undue hardship. On that note, this case becomes relevant because it raises the issue of the employee’s own negligence in seeking the employer’s indulgence. A fault that the employee can only escape by proving that he sought the same and was denied or that even if he sought such accommodation, it was bound to have been rejected as evidenced by prior tradition in the organization. The organization thus has an ace in this case, which is why I would advice that it takes the case and clear its name.
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 1244-1245)
In this case, the court allowed the claimant’s position in constructive discharge despite the fact that the employee resigned after the employer subjected her to ‘intolerable’ conditions. The court held that it would have been inevitable for the employee to resign given the harsh treatment and the only other possible eventuality would have been for the employee to renounce long-held values. However, the court also indicated that the acts complained of were serious, recurring, and not isolated cases of misconduct or fault.
This aspect makes the case a useful persuasive tool in the present case study as the employee in the vignette resigned shortly after the adoption of a new policy whose implementation was incomplete, in addition to the fact that he did not explain his values to the HR department to seek a reprieve from the rules. The courts require proof of a continuous pattern of discrimination or abuse that clearly indicates the intolerability of the situation coupled with forcing the employee to quit. In this case, the employee cannot fully satisfy the court of such a scenario because it was a one-time policy, which was flexible to change without defeating its initial purpose, as most workers would continue working uninterrupted.
Steps to avoid legal issues AROUND Title VII of the Civil Rights Act of 1964
In brief, several things could be done to accomplish this goal , including:
- educating employees on their rights and obligations under the Title VII provisions in order to avoid miscarriages of justice based on technicalities.
- Encouraging employers to engage the current employees in the making of policy considerations and changes so at to have their input as this aspect encourages employee buy in and reduces the chances of the employees feeling disgruntled by new policies that have simply been forced upon them without their consent or contribution to the formulation.
- Educating employers on the obligation that they have under Title VII and ensuring that this education is up to date as to include the new guidelines proffered by the EEOC on what they should accommodate and what they may choose to ignore. It is also important that they know how to navigate sensitive topics such as homosexuality and for them to understand how to go about implementing policies that shall not impede the enjoyment of their employees’ rights, thus giving cause for discrimination claims.
Steps to decrease the risk of this type of claim reoccurring in future coupled with why they are important
First, employers should be careful to regularly review and revise all the relevant workplace rues and policies to comply with the EEOC set standards. These include the anti discriminatory policy or harassment or retaliation policies, non-solicitation policies that prohibit proselytizing at work and IT usage policies that govern the use of emails and other electronic communication avenues (Traurig, Sulds, & Israel, 2008, p. 4).
Secondly, employers should take within their stride the task of training their personnel on these policies on discrimination that they have learnt themselves and seek to implement within the organization. Thirdly, employers should keep themselves informed on the local legislation that mirrors the Title VII provisions to avoid trouble due to jurisdictional glitches. Finally, both employers and employees ought to invest in legal consultation in order to receive wise counsel in case of a conflict regarding how to proceed.
Conclusion
This paper has carried out a brief review of the principle of constructive discharge as provided for under Title VII. It has also referred to this concept as “failure to accommodate” especially where the discrimination is religious and has provided a comprehensive discussion on the building blocks of a potential case in the same. It has thus concluded that in the provided scenario, the case is inherently flawed due to the ex employee’s failure to inform the employer of the need to be accommodated for she resigned.
Reference List
Brougher, C. (2007). Religion and the Workplace: Legal Analysis of Title VII of the Civil Rights Act of 1964 as It Applies to Religious Organizations. Washington, DC: Congressional Research Service.
Cihon, P., & Castagnera, J. (2011). Employment and Labor Law. Mason, MA: South-Western Cengage Learning.
Pearce, J., Kuhn, D., & DiLullo, S. (2005). U.S. employers’ legal responsibilities for preventing religious discrimination. Managerial Law, 47 (2), 208 – 2224.
Rosenthal, L. (2012). Title VII’s Unintended Beneficiaries: How Some White Supremacist Groups Will Be Able To Use Title Vii To Gain Protection From Discrimination In The Workplace. The Temple Law Review, 84, 443 – 481.
Traurig, G., Sulds, J., & Israel, J. (2008). EEOC Issues New Compliance Guidance on Religious Discrimination Under Title VII. Labor and Employment, 14, 1-6.