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Western Governor's University

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Interoffice Memo – Kyds Toys
To: Jay Kyds: Chief Executive Officer
From: Division Manager – Elementary Toys Division
Subject: A. K. Whitter Claim of Constructive Discharge
Date: 08.03.2014 cc: Legal, Human Resources

I.

Claim and Constructive Discharge Definition
Having received notice of a claim being filed by A.K. Whitter, a former employee of
Kyds Toys, alleging forceable resignation due to constructive discharge on the premise of the work schedule policy change requiring shift work by all production employees. The complainant is seeking relief under Title VII of the Civil Rights Act of 1964. Even though Mr. Whitter resigned prior to the policy change taking effect, the potential for liability remains for back wages and possible punitive damages.
According to Finnegan, (Finnegan, 1986), courts have developed two tests to determine when an employee has been constructively discharged by a discriminating employer. Using the majority view, an employee who resigns after being subjected to discrimination of a protected class is determined to have been constructively discharged if a “reasonable” person would have found the conditions intolerable. This is defined as the Reasonable Person Test. Conversely, under the minority view, the burden of proof lies more with the plaintiff showing not only intolerable conditions but that the employer created these conditions causing the resignation. This is defined as the Specific Intent
Test.

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The reasonable person test focuses on the employer’s actions on the employee whereas the specific intent test focuses on the employer and what causal factors were created to cause the employee to quit. These two tests can overlap in the way that the plaintiff must demonstrate that a reasonable person would have found the working environment not tolerable. The existence of intolerable conditions can be the critical element in both tests for constructive discharge.
Title VII provides discrimination protection from the following protected classes based on race, color, religion, sex or national origin. Is this instance, religious preference is the subject of this complaint in which the complaintant’s civil rights were allegedly violated due to the change in the work schedule without consideration for his observance of a religious holy day.
However, Mr. Whitter had already resigned before the policy was to take effect.
Mr. Whitter did not allow any opportunity to make reasonable accommodation for the religious holy day. A floating holiday program could be enacted to allow accommodation for certain religious practices or holidays but also allowing all employees to choose a day or two at will for whatever reason. The recommendation would be to allow this to go to court and based on the following court cases, Kyds would have substantial options for defending against a constructive discharge case. Zedeck v. Target and Ellerth/Faragher decisions provide the best defense examples, while Wilson v.
Monarch Paper and Pennsylvania State Police v. Suders provide insight on what happens when situations go to far and the company is found at fault.
This can be broken down into two different types of discrimination – disparate treatment and disparate impact. Disparate treatment occurs when an employee is treated

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differently by their employer because of his or her protected class status. Disparate impact occurs while the same standard is applied to all employees but has a negative or more adverse impact on a protected class. Disparate treatment is direct while disparate impact is indirect. Disparate impact was confirmed the 1971 Griggs v. Duke Power case ruled on by the Supreme Court.
(Zedeck v. Target Corp, 2008) provides a similar example where a good and productive working relationship was damaged and resulted in the resignation of an employee causing a religious