The Civil Rights Act Of 1964 is arguably the most significant aspect of legal issues governing labor relations to this day. Title seven of the same act illegalizes discriminatory practices in the employment process and the entire human resource management function of any organization (Silver, 2001). It made illegal all prejudices along the sexual, color, creed, and racial lines. It is vital that all stakeholders in an organization, especially the staff members and stewards of the organization to possess mastery of the legal concept of Equal Opportunity Employment. This will see to it that the welfare of both parties is taken care of and that their rights and freedoms are safeguarded. One of the crucial concepts addressed under this Act is the concept of constructive discharge. This concept is handled in this paper, with regard to a situational problem solving scenario. The paper also tackles other sections of the same Act, giving ways to mitigate employer’s liability and methods of dealing with such cases as the one in question.
Relevance of the constructive discharge concept to the scenario
Constructive discharge is said to have taken place when a member of staff or a section of the workforce is compelled to withdraw from the employment contract through resignation following some conduct from the employer that can be considered unendurable to the average reasonable person (Silver, 2001). The conduct of an employer is and can only be considered intolerable if and only if is felt by a considerable part or section of the workforce. For instance, where an employer changes the location of an employee’s office and the employee takes offence and resigns, there cannot be an effective law suit on grounds of constructive discharge. An example of employer’s conduct that may amount to constructive dismissal is sexual harassment or demotion of an employee in unclear circumstances and without observing the formal disciplinary procedure applicable to the organization.
This legal concept also referred to as constructive dismissal is based on the presumption that, the member of staff did not resign due to personal will. The employee resigned due to unbearable conduct by the employer. Had it not for the employer’s adverse conduct, the employee could still be in office. As such, the fact that the sole reason for the resignation of the employee is the employer’s conduct, amounts to forceful dismissal (Silver, 2001). As such the aggrieved staff member can proceed to the courts of law for and file a legal suit against the employer. For the civil suit to be valid, the aggrieved party must have put it into effect within a reasonably short time after the wrongful dismissal. Therefore, where an employee proceeds to the courts after such duration as the court may deem unreasonable, the case is dismissed on grounds of lapse of time.
Whether or not the claim of constructive discharge is relevant to this scenario depends on the extent to which the conditions of the concept apply. First and foremost, the former employee is filing a law suit after a period of more than three weeks. I have been the elementary division manager for three weeks now. The fact that the employee is reporting the alleged wrongful dismissal to the courts after such a long time, without having made an appeal to the employer, compromises the chances there being a valid constructive discharge case. The employee could only have achieved success is making the suit if he or she had done so shortly after the implementation of the said change. Having kept silent over the issue for close to a month raises the presumption that he or she was comfortable to that effect. As such the claims of constructive discharge in this case are irrelevant on grounds of timing.
Another factor to be considered in determining whether or not a case amounts to wrongful discharge is whether or not the aggrieved party gave sufficient notice to the employer with regard to the resignation (Miller, 2012). For the claims of constructive dismissal to hold, there must have been sufficient notice by the resigning employee to the employer prior to the resignation, explaining his plan to resign and indicating that such resignation is prompted by some kind of unbearable conduct by the employer. I would therefore, refer to the records filed by my predecessor to establish whether or not the employee in question gave sufficient notice. I will also go through the records to find out the management's response to the employee’s resignation notice. It is worth noting that if the employee resigned without adequate notice, he or she can be sued for breach of contract.
Constructive dismissal, from the definition should come as a result of the employer making the working environment so agonizing that the workforce is not willing to continue offering its services (Miller, 2012). To an average reasonable employee, making them work on a religious holy day does not amount to unbearable conditions stipulated in the definition. And even when it violates one’s right to worship, such an employee should not resign as that is a fixable situation that can be handled by the human resource management. It then follows that since no other employee has taken a similar step, the concept of wrongful discharge is irrelevant in this situation. A change in the working conditions should affect a substantial part of the entire workforce for it to be termed as being compelling and intolerable. The principle of numbers however does not apply to such cases as sexual harassment as was held in the case of Faragher v City of Boca Raton.
It is noteworthy that contrary to the above argument, the concept of constructive dismissal could as well be relevant. If the employee had appealed to the human resource department with regard to violation of his right to worship and the department dismissed his appeal, then he can within 90 days of such dismissal sue the employer for wrongful dismissal pursuant to subsections (a) and (c) of Title VII of the Civil Rights Act Of 1964. Subsection (a) prohibits discrimination against creed, sex, racial background, and age and skin color. Subsection (c) of the same title provides that the aggrieved employee can proceed to the courts of law after the employer has dismissed his or her appeal. The fact that our company’s new policy compels the employee to work on a religious holy day amounts to discrimination along religious lines. Arguing thus makes the concept of constructive dismissal relevant to this scenario.
Areas covered under title VII the Civil Rights Act Of 1964 that are relevant to the case
Another area of prominence reflected in the scenario is the procedure of an employee taking civil action against the employer. This is outlined in subsection (c) of title VII. The subsection explains the procedure with regard to time and prior notices by the employer. The issue of this scenario is determined by time. With regard to the same subsection, the conduct of the employer in the course of employment is as well addressed. In determining whether or not there exists valid constructive discharge, the courts must determine whether or not the employer gave sufficient notice prior to making the changes. If the employer did not provide staff with sufficient notice prior to introducing the new arrangement, that amounts to constructive dismissal.
Paramount to this scenario is the issue of constructive dismissal or wrongful discharge. The employee in this scenario is forced to resign due to the change in the work time plan. If at all there can be established a cause-effect relationship between the decision to resign and the act of the employer altering the program without sufficient notice or due consideration of the employees’ religious backgrounds, then wrongful discharge can be a valid ground for a civil action by the former member of staff. Much as the manner in which the law addresses the concept of constructive dismissal may vary from one jurisdiction to another, that which constitutes constructive discharge is the same universally.
Responding to the employee’s charge of constructive discharge
There are many ways in which the defendants, in this case the company or the employer can respond to the charge. The best and most effective way of responding to the charge or wrongful dismissal is through the affirmative defenses (Jentz, 2008). This is the type of defenses where the accused party files fresh allegations against the complainant with sufficiently convincing evidence. This kind of defense, in layman language can be called an answer to the filed charges. Affirmative defenses are mostly applicable in cases where the type of discrimination or unfair treatment was unintentional as is the case in this scenario. A perfect example of an affirmative defense under common law practice is the defense of necessity.
In my opinion, I would advise that the company adopts this approach and site necessity as a component of the defense. The need for the company to deal with the expanding size whilst keeping the cost of operation on the low was a necessity. It would be irrational to make the company incur very high costs for the simple reason of injuring a single employee’s right to worship. In conducting its defense, the company through the Company Attorney can prove beyond a reasonable doubt that indeed the company gave sufficient and timely notice with regard to the changes that prompted the employee to resign.
Depending on the duration between the times the changes took effect to the employee’s resignation, the company can argue that, the employee’s decision to exit was not in any way related to changes in working days and does not therefore amount to wrongful discharge. In addition to proving the absence of constructive dismissal, the company can launch a civil suit against the employee for breach of contract since he did not give timely notice with regard to his or her resignation. Before resigning, it is in order for an employee to serve the human resource manager with a timely notice referring to his plan to resign and outlining reasons why he or she feels they cannot continue serving in the organization (Jentz, 2008).
Affirmative defenses were established and used effectively in the case of Burlington Industries, Inc v. Ellerth. The rationale behind affirmative defenses is found in the ruling to the landmark case of Faragher v. City of Boca Raton. These two cases set a judicial precedent in the cases of constructive discharge especially the scenarios of sexual discrimination (Jentz, 2008). The affirmative defense was however found to be inefficient in cases like Suder v. Pennsylvania State police where the complainant wanted to sue the department on behalf of its employees under the doctrine of vicarious liability.
Steps to avoid legal issues around Title VII of the Civil Rights Act Of 1964
Organizations both big and small can adopt various measures in preventing civil actions by employees against the company. Of such step is instituting strong systems of handling employee complaints. Through this system the employees should report any grievance to the relevant authority, in this case the personnel department. Through the setting up of such structures the company mitigates the chances of an aggrieved employee going to court over an otherwise fixable issue (Jentz, 2008). For instance it was indeed very possible to handle the scenario above internally had it been reported through the right channels and at the right time.
A second recommendation is to provide for religious accommodation at the place of work. Employers can achieve this through allowing employees to state their religious beliefs as early as during the recruitment period. They should be given a chance at this stage in time to explain how their religious practices are likely to interfere with the performance of their duties and obligations in the organization. The employer should seek to establish whether the recruits will be willing to work on their days of worship in case if any alterations in program me. Such agreements should be put in writing and duly signed by both the applicant and the employer as they will be produced as evidence in the case of a suit for constructive discharge (Miller, 2012).
Another step that is paramount in the concept of wrongful discharge, the move by the employer to embrace exceedingly strict non-sexual discrimination laws in the place of work. Breach of such laws should be severely punished. These heavy penalties should be prescribed by the management of the organization and made known to all employees and all the members of the management. This will reduce incidences of civil suits by employees against the company through the doctrine of vicarious liability (Miller, 2012). The use of other methods of mitigating liability such as the attachment of disclaimer is also useful. The employer should attach a disclaimer to the terms of employment. This can be used as a defense in the case of constructive dismissal.
In conclusion, it is essential for all stakeholders in an organization especially the company, the employee and management to be fully aware of the labor laws governing the employment contract (Jentz, 2008). It is also very essential for the employer to take precautionary measures aimed at mitigating civil liability during the employment contract. The company should realize the essence of instituting strong controls and complaint handling structures. Religious accommodation is a very important concept and the company should embrace it as a matter of urgency.
Jentz, G. (2008). Business Law Today: The Essentials (8th Edition). New York. Thomson West
Miller, C. (2012). The Legal Environment Of Business: Ethical, Regulatory, Global And Corporate Issues (8th Edition). New York. Cengage Learning
Silver, I. (2001) Public Employee Discharge and Discipline (3rd Edition)