Human Resources Constructive-Dismissal Report Essay

nubIt has come to my unfortunate attention that a former employee has made a discrimation-focused legal necessitate against our fellowship. My goal is to define plastic dismissal justify the legal mandates to which it whitethorn be attributed discuss the meritsor lackof it and cracking future mitigative bring throughs to avoid much(prenominal) adduces. reconstructive Dismissal delimitBefore delving into a serious discussion of the former employees claim, it is primal to d letstairsstand 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 make watering relationships with an employer. The impetus for the termination is an employers bequeathful draped to force a hostile or unsufferable be givening condition. Legally speaking, constructive dismissal is, then, tantamount to involuntarily separating the employee from the smart set (United States Department of Labor, 2012).There are third standards that essential(prenominal) be considered when adjudicating whether a shoes falls within constructive-dismissal grounds. They are1. Intolerable Conditions2. Objective beat3. Employer Knowledge and IntentThe adjective in the first standard is important, because it makes the greenback between un collectable working conditions that are unbearable for a levelheaded person and a process transmute that whitethorn be inconvenient for theemployee but is non intolerable. Trival matters much(prenominal)(prenominal) as changing a estimator from a PC to a Mac, are exmempt from this standard, since these frustrations are a prescriptive in all areas of usage.The second standard establishes a consensus on what is considered intolerable. It is delimit as a work environment in which a fair(a) person would feel compelled to part.The third standard is also important, because it whitely indicates that the employer must(prenominal) kn ow 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 propel by a substantiated crease need (Turner v. Anheuser-Busch, Inc., 1994).Please none that constructive dismissal does non unavoidably advert discrimination (though it is al much or less al centerings discrimination base), since it substructure don to both those in a protected kinsfolk or right(prenominal) it.The ex-employee charges that the order of strain change for the production department was an un reasonable action on the go withs part and resulted in her being forced to work on a divine day of her spectral persuasion. Resultantly, she charges that she felt compelled to quit, which is wherefore she has filed a constructive-discharge claim against the conjunction.Constructive-Dismissal and Attendant Legal MandatesMore than just creating such a toxic environment, when the wor king condition creates an undue effect based on the employees race, ethnicity, gender, national origin, or religion. the Title VII of the civilised Rights Act applies and sets forth(1) to fail or refuse to hire or to discharge any variant(prenominal), or early(a)wise to discriminate against any individualistic with respect to his compensation, terms, conditions, or privileges of role, because of such indvidualsrace, color, religion, sex, or national origin or(2) to limit, segregate, or phaseify his employees or applicants for employment in any way which woulld deprive or tend to deprive any individual of employment opportunities or differentwise adversely affect his status as an employee, because of such individuals race, color, religion, sex, or national origin (Equal Employment chance Commission, 2012).An amalgamation of undue effect and discrimination of a protected class engenders disparate move (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 processs that a answering uses a crabby employment confide that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to build that the challenged perform is job related for the position in question and conformable with business necessity or(ii) the complaining party makes the intro set forth in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to scoop out 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 indicate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the act that the elements of a respondents decisionmaking process are non 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 non cause the disparate impact, the respondent shall not be necessary to demonstrate that such practice is required by business necessity.(C) The materialization 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 opposite provision of this subchapter, a rule barring the employment of an individual who shortly and knowingly uses or possesses a controlled substance, as defin ed in order of businesss I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or self-denial of a drug taken under the supervision of a accredited 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 unaccompanied 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 promptly referred to in the Civil Rights Act, it is clearly implied, since such a dismissal normally is directed at protected classes of individuals. When capture with disparate impact, constructive dismissal will fall under the eyeshot of the Civil Right Act, and both are licitly actional behaviors that the federal official politic s will pursue through legal action and fines.It should be storied that the level of requisite integrity of constructive-dismissal claims can vary from state to state. For example, capital of the United States 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 ifappealed 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 instrument 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 affilia tion.Constructive-Dismissal MeritsThe ex-employees claim does not satisfy constructive-dismissal, disparate-impact, and discrimination prohibitions. The facts of this casing clearly indicate this.Let us apply this individuals 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 record qualifying, which required 12-hour days for four days a week and with cardinal days off, created a hostile environment. This particular aspect of this individuals 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 conditional relation 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 growththe 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 rule 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 chance offered and chose days to wo rk that were arrogate 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 ones 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 calendar week 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 individuals religion. There is no well-founded recount to ache such a concern. We hire a range of people with different religious beliefs. Some are opposed to work on Sundays. Ot hers 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-employees claims.The company must respond to these charges. It can do so in one of three ways1. The company can ignore the facts of this scenario and accept that the ex-employees 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 butoffering 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 consequence 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 investigatory company endeavour denote no actual discrimination or the appearance of it (Cruz, Padilla, & Narvae rightfulness Firm, 2011).There are caveats to each of these solvents, however. For Response 1, this action is a clear company admission of its culpability in discrimination within its organization. It is an disgusted rejoinder, since it placates the ex-employee but tarnishes the name of the company. Furthermore, acquiescing to the ex-employees claims by adjusting the schedule may real 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 victorious up the matter in a court of law. There is a likelihood, no matter how remote, that arbitration will result in our companys acquiescing to the ex-employees claims. This eventuality can result in financal harm 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 companys wishes, the negative look that the ex-employee may generate would harm recruiting efforts of candidates or customers who increasingly place tax 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 companys 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 itinerary 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 companys 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 staf f 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 dispute of company operation (HR Info Center, 2009).A court-centered legal response to this claim is preferable also because of the inquiring 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 thoroughnessand seriousness that our policy devotes to discrimination complaints. Multiple layers of leadership are mingled in the process, and many employees are interviewed to determine if they shared the same sentiments.The investig ative 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, disregardless the result of the complaint. Our company can provide documented evidence of our response to past complaints as well as the companys garbage disposal toward employees after the resolution of these complaints. Demonstrating the companys follow-through efforts that the ex-employee did not gain herself of will provide substantial support of our contention that we are move to operating in a discrimination-free environment (Kleiner Perkins Files Legal Response To sex 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 company in which we operate, a diverse confederacy. 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 drop down 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).