Thursday, April 11, 2019
Human Resources Constructive-Dismissal Report Essay Example for Free
Human Resources Constructive-Dismissal Report EssayMessageIt has buzz off to my unfortunate attention that a former employee has made a discrimation-foc characterd legal necessitate against our guild. My goal is to arrange creative spill explain the legal mandates to which it whitethorn be attributed discuss the meritsor lackof it and tolerate future mitigative actions to avoid such(prenominal) look ats.Constructive DismissalDefinedBefore delving into a sincere discussion of the former employees father, it is important to understand the legal construct upon which it has been founded this construct is referred to as structural dismissal. Constructive dismiissal refers to an employee compulsion to terminate any working relationships with an employer. The impetus for the termination is an employers willful pattern to create a antipathetic or unbearable working condition. Leg tout ensembley speaking, plastic dismissal is, then, equivalent to involuntarily separating th e employee from the guild (United States Department of Labor, 2012).thither ar three standards that must be considered when adjudicating whether a part falls within constructive-dismissal grounds. They are1. Intolerable Conditions2. Objective Standard3. Employer Knowledge and IntentThe adjective in the first standard is important, because it makes the distinction between idle working conditions that are unbearable for a well-founded person and a plow change that may be inconvenient for theemployee but is not intolerable. Trival affairs 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 withal important, because it clearly demos that the employer must know that changes that it is implem enting 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 pipeline 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 defend to both those in a protected class or outside it.The ex-employee charges that the history change for the takings department was an unreasonable action on the go withs part and pass oned in her being hale 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 assume against the company.Constructive-Dismissal and At die hardant Legal MandatesMore than just creating such a toxic environment, when the working condition creates an excessive effect based on the employees race, ethnicity, gender, n ational origin, or religion. the Title VII of the Civil Rights take on applies and sets forth(1) to fail or refuse to hire or to discharge any man-to-man, or contrastingly to discriminate against any single(a) with respect to his compensation, terms, conditions, or privileges of employment, because of such indvidualsrace, 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 individuals race, color, religion, sex, or national origin (Equal study Opportunity Commission, 2012).An amalgamation of un out-of-pocket effect and discrimination of a protected class engenders disparate regard (Equal Employment Opportunity Commission, 2012) Employment separation due to disparate impact explicitly applies to the following sections of Title VII of the Civil Rights feat of 1964. The onus of proof is placed on the claimant. This person must do the following(i) a plain party demonstrates that a sufficeent uses a grumpy 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 tie in for the position in question and consistent with personal line of credit necessity or(ii) the complaining party makes the reflection described in subparagraph (C) with respect to an resource 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 butterfly that the element s of a respondents decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one and only(a) 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 work 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 apprehension 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 veto the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in chronicles I and II of section 102(6) of the Controlle d 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 official 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 enjoin at protected classes of individuals. When combined with disparate impact, constructive dismissal will fall under the skyline of the Civil Right Act, and both are legally actional behaviors that the federal government will pursue done legal action and fines.It should be noted that the level of requ isite integrity of constructive-dismissal claims can vary from area 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 ifappealed to federal levels, since federal laws offer no protection against discrimination based on sexual orientation (Human Rights Campaign, 2012).In humanitarian to constructive dismissal, the ex-employee charges that the memorandum 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.Constructive-Dismissal MeritsThe ex-employees claim does not satisfy constructive-dismissal, disp arate-impact, and discrimination prohibitions. The facts of this result 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 scroll 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 individuals claim fails this test for a few reasons 1) Business growth motivated the enumeration adjustment, not malice 2.) the schedule adjustment applied to the most affected department, which is turnout, 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 force them to work on specific days that happened to be days of observance for their religion. Considering the schedule flexib ility offered, if the ex-employee worked on a holy day, it was out of pickaxe, not compulsion on the part of our company. some other 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 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 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 distinguish for their needs. There have been no other complaints of being forced to work or be ing otiose 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 go 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 individuals 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 ha ve 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 brush off the facts of this scenario and accept that the ex-employees claims have merit and can then move to allay 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 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, e specially after the findings of an inquiring company trial denote no actual discrimination or the appearance of it (Cruz, Padilla, Narvae Law Firm, 2011).There are caveats to each of these retorts, however. For answer 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-employees claims by adjusting the schedule may precise well set an inappropriate expectation for other employees. An influx of schedule requests based on employees who wind up 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 co mpanys acquiescing to the ex-employees 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 companys wishes, the negative image that the ex-employee may generate would harm recruiting efforts of candidates or customers who increasingly place pass judgment 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 love 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.B ased 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 despatch is devoting funds unnecessarily to a trivial 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 insurance is clear. (In allusion to a subsequent section, the clarity of the indemnity does not imply that it has been adequately explained to prosepctive and current employees a training political 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 earlier 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 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 bas is. 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 companys disposition toward employees after the resolution of these complaints. Demonstrating the companys 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 severally 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 partnership 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 fiscal 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).