Re: Constructive Discharge
Introduction
Black’s Law Dictionary defines constructive discharge to include termination of employment instigated, caused, brought about or effected by an employer in making working environment and/or conditions so unfriendly or intolerable that his or her or its employee feels compelled to leave . It is however notable that this does not mean any employee unhappy with their working conditions can deliberately quit their job and institute a lawsuit against their former employer in constructive discharge. The employee bringing a lawsuit in constructive discharge against his or her employer must successfully establish their case on the balance of probabilities . He or she must prove that the employer altered or made substantial changes to his or her working conditions or job and that such alterations or changes were so extraordinary and exceptional that the same had the effect of compelling him or her or any other reasonable employee to quit their job in the circumstances. The burden also lies with the employee to prove that the said changes were intentionally made and that it could be reasonably foreseeable or expected that they would quit employment in consequence thereof.
Further, the said alterations must be shown to be in sync with or tied to another or other legal violations, such as discrimination on any basis or an attempt to deliberately, and carelessly so, restrict the said employee from exerting his or her legal rights such as involvement in union activities. Finally, it must be shown and demonstrated that the employer had plausible justification or substantiation for effecting such adverse changes. To sum it up and in simple terms, it must be proved on the balance of probabilities, that the employer made changes in the working conditions with the intention of forcing or edging the employee out of employment with the said changes being instigated wholly or partly by the presence of a legal restriction preventing the employer from just firing the employee or arbitrarily terminating their employment-such as an employment contract, collective bargaining agreement or labour laws .
- Relevance of constructive discharge as a legal concept to the relevant scenario.
It is indeed not in dispute that the company revised its work policy to allow workers rest or take a respite from work for four days after four days of work not only in a bid to boost productivity but also to ensure efficiency of work. This is a radical departure from the previous practice where workers used to work from the regular 8.00 a.m. to 5.00 p.m. five days a week-Monday to Friday leaving them free on Saturday and Sunday. It is notable however that the said changes in the work schedule and policy would in consequence see some employees’ work-shift falling on Saturday or Sunday when they should presumably be involved in their religious commitments or activities and pursuits. I also note that the said changes are not permanent as the weekend commitment would be flexible and rotational to the extent that at one point an employee would find him or herself committed or at work on one prayer day and free on another, their prayer day and time notwithstanding . An employee has instituted a suit in constructive discharge seeking relief on account of the said changes in the work policy alleging religious discrimination. Indeed the Federal law in place protects employees from any discrimination at work including arbitrary or wrongful termination of employment. The concept of constructive discharge seeks to ensure that an employer can still be found liable even in circumstances where the employee voluntarily leaves or opts out of employment thanks to such targeted discrimination. An employee does not in consequence therefore, need prove that they were fired. All they need to prove is that there were extraordinary circumstances that compelled them to leave employment, how they left notwithstanding. Back to our company case, the employee has indeed alleged a nexus between violations of his rights-religious discrimination on account of the changes effected by the company and has thus arguably met one of the requirements in proof of constructive discharge. He has also shown that he left employment on account of the said policy revision . His case however, in my considered view, falls short of the requirements of targeted change, reasonably foreseeability of the consequential discharge on the part of the company, unreasonableness of such changes and lack of their justification thereof. It is not in doubt that the company did not have in mind the employee at the time of evaluation and revision of the policies and neither did such changes target him. All the company targeted was improved work output and efficiency. Further it arguable that the company could not foresee a discharge arising in a consequence of the said changes. In view of the foregoing, it is my considered view that the employee’s case is not only frivolous and vexatious but also falls short of the evidential threshold necessary to sustain a claim in constructive discharge.
- Relevant Sections of Title VII of Civil Rights Act of 1964.
Section 703 enlists religious discrimination as one of the unlawful employment practices and gives an employee the liberty to sue his or her employer for damages as a matter of right on account of the same. It however exempts religious bodies from such lawsuits in the event that they employ certain labour practices that are prima facie discriminatory to people who do not subscribe to the same religious beliefs. Section 703 (b) states expressly that it shall be shall be an unlawful employment practice for an employment agency to refuse employment or discriminate against any individual on the basis of among others; race, colour and religion. My contention however is that the change in work policy in our organization does not in any way whatsoever amount to religious discrimination and the former employee would be at great pains to establish the same; which in my view, is quite a stretch.
c.) Recommendations
The explanations in (a) above refer. The company has and can, with strategy mount a relatively successful defense against the employee’s allegations . It can argue, and successfully so, that it had not in mind, the employee at the time of the revision of the policy and neither did it for all intents and purposes, incline towards edging the employee out of employment. Further, the employee cannot prove or will experience great challenge proving that the said changes were deliberate, harsh and intolerable as to force any right thinking and reasonable employee, including her, out of employment. In fact the revision gave the employees more free time, four days to be particular, and there is indeed nothing harsh or intolerable about allowing someone free time while still on similar pay they were before the changes were effected. Moreover, the said changes have no (and if they indeed have, the same are quite remote and far stretched) nexus with religious discrimination as the work and rest times are rotational and not permanent.The successful implementation of the above proposed defence strategy and avenues would, in my considered view, see the company absolved of liability in constructive discharge.
References
Aamodt, M. (2011). Industrial/Organizational Psychology: An Applied Approach. New York: Cengage Learning.
Collins, H. (2012). Employment Law. New York: Oxford University Press.
Garner, B. A., Newman, J., Jackson, T., & Becky. (2011). Black's Law Dictionary. New York: West Group (Law).
Phillips, J., & Gully, S. (2011). Organizational Behavior: Tools for Success. New York: Cengage Learning.
