It has come to my unfortunate attention that a former employee has made a discrimation-focused legal claim against our company. My goal is to define “constructive dismissal”; explain the legal mandates to which it may be attributed; discuss the merits—or lack—of it; and offer future mitigative actions to avoid such claims.
Before delving into a serious discussion of the former employee’s claim, it is important to understand the legal construct upon which it has been founded; this construct is referred to as “constructive dismissal.”
Constructive dismiissal refers to an employee compulsion to terminate any working relationships with an employer. The impetus for the termination is an employer’s willful intent to create a hostile or unbearable working condition. Legally speaking, constructive dismissal is, then, tantamount to involuntarily separating the employee from the company (United States Department of Labor, 2012).
There are three standards that must be considered when adjudicating whether a situation falls within constructive-dismissal grounds. They are
1. Intolerable Conditions
2. Objective Standard
3. Employer Knowledge and Intent
The adjective in the first standard is important, because it makes the distinction between undue working conditions that are unbearable for a reasonable person and a process change that may be inconvenient for the employee but is not intolerable. Trival matters such as changing a computer from a PC to a Mac, are exmempt from this standard, since these frustrations are a normative in all areas of employment.
The second standard establishes a consensus on what is considered intolerable. It is defined as a work environment in which a reasonable person would feel compelled to quit.
The third standard is also important, because it clearly indicates that the employer must know that changes that it is implementing create an intolerable environment, and it does so with the intent of compelling an employee to quit as opposed to implementing changes that are motivated by a substantiated business need (Turner v. Anheuser-Busch, Inc., 1994).
Please note that constructive dismissal does not necessarily imply discrimination (though it is almost always discrimination based), since it can apply to both those in a protected class or outside it.
The ex-employee charges that the schedule change for the production department was an unreasonable action on the company’s part and resulted in her being forced to work on a holy day of her religious persuasion. Resultantly, she charges that she felt compelled to quit, which is why she has filed a constructive-discharge claim against the company.
Constructive-Dismissal and Attendant Legal Mandates
More than just creating such a toxic environment, when the working condition creates an undue effect based on the employee’s race, ethnicity, gender, national origin, or religion. the Title VII of the Civil Rights Act applies and sets forth:
“(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 indviduals’race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which woulld 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” (Equal Employment Opportunity Commission, 2012).
An amalgamation of undue effect and discrimination of a protected class engenders “disparate impact” (Equal Employment Opportunity Commission, 2012) Employment separation due to disparate impact explicitly applies to the following sections of Title VII of the Civil Rights Act of 1964. The onus of proof is placed on the claimant. This person must do the following: “(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
“(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
“(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
“(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.
“(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.
“(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.
“(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin” (Equal Employment Opportunity Commission, 2012).
Although constructive dismissal is not directly referred to in the Civil Rights Act, it is clearly implied, since such a dismissal normally is directed at protected classes of individuals. When combined with disparate impact, constructive dismissal will fall under the purview of the Civil Right Act, and both are legally actional behaviors that the federal government will pursue through legal action and fines.
It should be noted that the level of requisite integrity of constructive-dismissal claims can vary from state to state. For example, Washington extends a protected-class status to gays, lesbians, bisexual, transgender, or intersexed people, whereas Arizona extends no special class status to them. A constructive-dismissal claim due to sexual orientation in Washington would be considered; in Arizona, such a claim would not be considered. Furthermore, such a claim would face significant challenges if appealed to federal levels, since federal laws offer no protection against discrimination based on sexual orientation (Human Rights Campaign, 2012).
In addition to constructive dismissal, the ex-employee charges that the schedule change infringed on her right to practice her religion, since she believed that she was required to work on a holy day. The Title VII Act explicitly prohibits discrimation based on religious affiliation.
The ex-employee’s claim does not satisfy constructive-dismissal, disparate-impact, and discrimination prohibitions. The facts of this case clearly indicate this.
Let us apply this individual’s claim to the standards required for each prohibition. First, for constructive dismissal, our company must create a hostile environment for the sole purpose of compelling the employee to quit.
The ex-employee believes that the schedule adjustment, which required 12-hour days for four days a week and with three days off, created a hostile environment. This particular aspect of this individual’s claim fails this test for a few reasons: 1) Business growth motivated the schedule adjustment, not malice; 2.) the schedule adjustment applied to the most affected department, which is production, since it is tasked with keeping up with the increased demand for our products; and 3.) we provided employees of that department schedule options; we did not constrain them to work on specific days that happened to be days of observance for their religion. Considering the schedule flexibility offered, if the ex-employee worked on a holy day, it was out of choice, not compulsion on the part of our company.
Another implication in the above argument is that a different department did not have its schedule adjusted. As indicated above, we adjusted the schedule for the department that is directly affected by the business growth—the production department. There is no impetus for us to adjust schedules for the human-resources department, for example.
Second, for objective standards, courts have repeatedly ruled that constructive dismissal is applicable if we create an environment that is so heinous, a reasonable person would quit. I have just indicated that our schedule adjustment was motivated by business need, not malice toward a particular individual or religion. All of the other employees took advantage of the schedule opportunity offered and chose days to work that were appropriate for their needs. There have been no other complaints of being forced to work or being unable to work on a non-holy day. Based on the scenario, it would not be reasonable to quit one’s job.
Third, for employer knowledge and intent, it is true that we knew that the increase in business might have caused an impact on certain employees’ lives. We proactively remedied this situation by offering such a flexible schedule, with employees making their own choice of what days they would and would not work. Employees have nearly half their workweek off. There is no reason for an individual to work on a holy day. Also, our only intent was to meet our customers’ needs, so we adjusted our business processes to effectively do so.
The underlying concern is that our actions were motivated by this individual’s religion. There is no tenable evidence to support such a concern. We hire a range of people with different religious beliefs. Some are unwilling to work on Sundays. Others are unwilling to work on Saturdays. Some require prayer at various points during the day. Where reasonable, we have always provided accommodations for such observances, and we did so with our schedule adjustment. There was no targeting of any religion. There is no veracity to the ex-employee’s claims.
The company must respond to these charges. It can do so in one of three ways:
1. The company can ignore the facts of this scenario and accept that the ex-employee’s claims have merit and can then move to placate the ex-employee in a few ways: a. Rehiring the ex-employee and paying her retroactive pay for the time she did not work, b. Not rehiring the ex-employee but offering a settlement to avoid a protracted legal scenario, or c. Rehiring the ex-employee and accommodating her schedule requests (Palopoli, 2011).
2. The company can enter into arbitration with the ex-employee to discuss the facts of the scenario, with the intention of arriving at an equitable solution that will placate the concerns of the ex-employee and the company (EEOC, 2012).
3. The company can refute the charges in a court of law, especially after the findings of an investigative company effort denote no actual discrimination or the appearance of it (Cruz, Padilla, & Narvae Law Firm, 2011).
There are caveats to each of these responses, however. For Response 1, this action is a clear company admission of its culpability in discrimination within its organization. It is an unbalanced response, since it placates the ex-employee but tarnishes the name of the company. Furthermore, acquiescing to the ex-employee’s claims by adjusting the schedule may very well set an inappropriate expectation for other employees. An influx of schedule requests based on employees who invoke their religious preferences would thwart the purpose of the schedule request, which is to meet customer demand.
For Response 2, the results of an arbitration hearing are legally binding and normally are a mitigative step against taking up the matter in a court of law. There is a likelihood, no matter how remote, that arbitration will result in our company’s acquiescing to the ex-employee’s claims. This eventuality can result in financal loss due to paying exorbitant sums to the ex-employee for what would amount to silencing her criticism of our company. Or if the results of the arbitration fall in line with the company’s wishes, the negative image that the ex-employee may generate would harm recruiting efforts of candidates or customers who increasingly place value on companies that demonstrate social responsbility toward people and its surroundings.
For Response 3, the judgment in a legal case can be binding. There may be a remote possibility that our company may not vindicate itself fully in court. Because of the facts of the case, it would be reasonable to expect that our company would appeal. However, the cost to contend with the ex-employee in court may be prohibitively high. And even if our company emerges victoriously, the result would not constrain the ex-empoyee from tarnishing our company’s name in the marketplace.
Based on the eventualities listed above, the viable course of action is Response 3. The actions of our company are sufficiently supported to provide a solid response in a legal setting. The likelihood of not prevailing in court is minimal. And although the opportunity cost to following this route is devoting funds unnecessarily to a baseless claim, vindication in court may very indicate to others who choose to bring dubious claims that our company will respond indignantly to these affronts to our company’s reputation.
Responding to the baseless claim by pursuing the matter in court is a tenable position, since our anti-discrimination policy is clear. (In allusion to a subsequent section, the clarity of the policy does not imply that it has been adequately explained to prosepctive and current employees; a training program offered to our recruiting staff will resolve that matter.) Our greatest defense is in presenting this policy as evidence to the court. The policy clearly indicates that the company respects religion as a protected class and makes every effort to accommodate religious rites as long as they do not present an undue contravention of company operation (HR Info Center, 2009).
A court-centered legal response to this claim is preferable also because of the investigative process that is extant within our anti-discrimination policy. The ex-employee did not provide our company an opportunity to investigate the claim before she resigned her position. The only indication that a problem existed was when the EEOC delivered the complaint to our company. Our investigative processes clearly demonstrate the thoroughness and seriousness that our policy devotes to discrimination complaints. Multiple layers of leadership are involved in the process, and many employees are interviewed to determine if they shared the same sentiments.
The investigative process is also confidential, and the results are shared with no entity without a need-to-know basis. Furthermore, the investigative process has corrective action built in if there is a determination of discrimination against the employee making the complaint. It also has a built-in anti-retaliation policy, regardless the result of the complaint. Our company can provide documented evidence of our response to past complaints as well as the company’s disposition toward employees after the resolution of these complaints. Demonstrating the company’s follow-through efforts that the ex-employee did not avail herself of will provide substantial support of our contention that we are committed to operating in a discrimination-free environment (Kleiner Perkins Files Legal Response To Gender Discrimination Suit, Denies “Each And Every Material Allegation, 2012).
Another reason why pursuing this matter in a court of law is appropriate is that our company can demonstrate our commitment to investing in the community in which we operate, a diverse community. Our company currently provides several millions of dollars in tax revenue to the community, revenue from which all members of the community benefit. But more than tax revenue, our company provides financial support to various groups in the community: religious-based groups, gay-and-lesbian groups, black-focused groups, and women-centered groups. Our commitment to financially supporting the community is a potent response by itself to the baseless claima against us. Logically speaking, it would be nonsensical for our company to expend money for these community-focused endeavors while practicing discrimination against the very members of the groups that benefit from our financial support (Response to discrimination claims, 2007).