Legal Environment Essay

Sexual harassment is always a legal topic in the work environment because the ramifications are so severe, but at the same time very abstract to describe what can constitute sexual harassment. This paper will take into consideration different elements of the law including Employment Law and cases tried before the U. S. Supreme Court. It will also offer suggestions for corrective action pertaining to the issue of sexual harassment in the workplace. In corporate America, sexual harassment is a huge concern amongst many organizations. The matter of sexual harassment is an issue that needs to be immediately attended to in order for companies to avoid large costs associated with lawsuits stemming from allegations of being sexually harassed in the workplace. Sexual harassment is usually an immediate damage. According to Crucet et al. (2010), â€Å"sexual harassment can cause damage to a company’s representation, status, customers, as well as their proceeds†. Sexual harassment can be identified as any unwelcome sexual jesters or advances, request for sex, and/or any physical or verbal conduct that may be considered in a sexual nature. The legalities circling sexual harassment can be broken down into two particular categories. According to Crucet et al. (2010), â€Å"the first category is quid pro quo and the second one consists of a hostile environment†. The first category of quid pro quo (this for that) sexual harassment usually involves an employee and a supervisor because in most situations only supervisors have the power of hiring and firing an employee. It also â€Å"involves some express or implied linkage between an employee’s submission to sexually oriented behavior and tangible job consequences† (Mallor et al. 2010, p. 1328). An example of quid pro quo could be related to a supervisor telling his female employee that â€Å"if you do this sexual favor for me, then you will be promoted†. According to Tyner & Clinton (2010), â€Å"other examples include managers requesting sexual favors, and the receipt or non-receipt of those favors as a condition for making hiring, termination, promotion, and other placement decisions. † Quid pro quo is easier to identify than hostile environment harassment. The second category of sexual harassment is called hostile environment harassment. According to Mallor et al. 2010), â€Å"hostile environment harassment, occurs when an employee is subjected to unwelcome, sex-related behavior that is sufficiently severe or pervasive to change the conditions of the victim’s employment and create an abusive working environment† (p. 1328). The key element of any type of harassment is unwelcomed sexual advances but in hostile environment harassment it is definitely a bit tricky and at times hard to define (Tyner & Clinton, 2010). Both categories of sexual harassment violate Title VII of Employment Law that is in place to protect equal opportunity in the workplace. In order to avoid or limit their liability for sexual harassment allegations, an employer must act immediately when issues of sexual harassment are brought to their attention in addition to providing adequate training on sexual harassment along with having an effective policy in place that identifies the definition of sexual harassment. A current ethical situation that I have encountered in the workplace involves hostile environment harassment. I have an employee by the name of Bob Doe that has been accused of sexual harassment in the workplace. Bob has been working as an Admissions Counselor under my supervision since January of 2011. Bob is married with three young children between the ages of ten to sixteen. Bob is a great worker but people still feel uncomfortable around him and comes off much different that the other male employee or co worker. He carries around an aura or vibe that makes the female employees feel uncomfortable. For instance, when Bob has a conversation with other female employees he tends to get too close and invade personal space. He is often caught saying vulgar and raunchy remarks that are HR inappropriate and has a habit of speaking under his breath a lot. Many of the female employees have claimed that he stares at them for periods of time without saying anything. He is medium to tall height, with a muscular build and tends to wear tight articles of clothing to reveal his muscles. Bob is middle aged and is about 5-10 years older than the average of other Admissions Counselors. In August of 2011, one day another male employee approached me and said that Bob had made some remarks to him regarding another female employee. Bob told this male employee â€Å"that he would love to catch her drunk† about that female employee. As a supervisor, this remark made me feel very angry that one of my employees would make comments like that about another employee and I immediately reported this action to my Director, Steve. Steve said that he really couldn’t do anything about that comment because I could not confirm whether or not he said it based off of the word of another employee and that the comment was not heard by the female employee. The director then told me to stay away from the gossip in the workplace and not to get involved in drama, He reminded me that I am suppose to be above that sort of office slander and that I was put in this position to make others people at their job and not be a whistle blower. I acknowledged what he told me and agreed that I would do a better job moving forward, but I still asked him to please report this incident to Human Resources. Steve said that he would handle the situation and would report the incident to Human Resources. Steve likes to handle all HR issues as he calls, â€Å"in house†. Steve wants the managers to run an incident by him before going to HR because he feels that he can handle the issues and that only if the cause was serious enough and if he was not present then we could go to Human Resources, otherwise we were to seek his approval or direction first. The second incident that involved Bob was in November 2011, when he approached another female employee on the team and grabbed her from behind and hugged her. Although he was not being overly aggressive and had a smile on his face, the female employee named Helen was caught off guard and felt violated and asked Bob not to touch her again because it made her feel uncomfortable. Bob laughed it off and said â€Å"Gezz girl relax! You know it’s not like that† and pointed at his wedding ring and walk away. Helen approached me and told me what happened. I immediately pulled Bob into a conference room and told him very sternly that it was inappropriate to hug and/or touch another employee in the workplace especially if it is unwelcomed because it could be viewed as sexual harassment. He said he understood and apologized for his behavior. At this time, I felt that this particular incident did not need to be reported to Human Resources since I felt I had a pretty good handle of the situation. I, however did document the incident in his employee activity log and mentioned it to my director who also said I handled the situation appropriately The third incident that happened regarding Bob was in January 2012. Bob was flirting with a female employee named Lisa who was not an employee on my team but still in the same division. Bob then began to grab Lisa’s hand and hold it with his hand. As Lisa pulled away, she asked Bob â€Å"why are you trying to hold my hand? † Bob’s response was â€Å" you’re so hot you’re making my hands clammy. † This was another sexual harassment issue that could have blown up. Once Lisa’s manager brought this situation to my attention, I once again called Bob into the conference room and explained to him that this was his second warning not to touch another employee, especially a female employee because it is inappropriate and unwarranted and if it were to happen again, then I would have no choice but to personally report him to Human Resources. Once again, I turned to my Director, Steve to seek his advice. Steve again told me that as long as you feel that you handled the situation appropriately and documented it then Bob should be fine. At this point I started getting the feeling that Steve didn’t care about the safety of my female employees and that he just wanted to avoid HR to avoid a situation. I felt as if Steve was allowing this to happen to prevent himself from looking bad. I then decide that I had to take the situation into my own hands and be more cognizant of Bob’s behavior with other employees. There have been a number of other times that Bob continued to make inappropriate comments to other female employees. He would compliment girls on their dress and say how nice their legs looked or that a certain color really brings out their figure. However, there were no mo complaints from Bob in regards to touching another employee inappropriately. He eventually decided to move onto another role with a different company and that was that. Sexual harassment is subjective because everyone identifies and perceives sexual harassment differently. Bob did come from the food and beverage industry where he was a bartender and a lot of his employees were cocktail waitresses in a night club in downtown. He did mention that in his previous job that he was very friendly with his staff because the culture would be more tolerable, especially with alcohol being involved. So, he may not have viewed his actions as being sexual harassment to his female employees, but obviously the employees felt otherwise. Author Tyner and Clinton write that â€Å"According to the law, the victim must be a â€Å"reasonable person† (Tyner & Clinton, 2010). The â€Å"reasonable person† standard initiated in the landmark case of Rabidue v. Osceola Refining back in 1986. According to Tyner & Clinton (2010), â€Å"in this case the majority ruled that vulgar language and the sexually oriented posters did not result in a working environment that could be considered intimidating, hostile, or offensive under the guidelines. † Essentially Judge Keith felt that â€Å"sexual harassment should not be judged by a reasonable person but rather by a reasonable victim† (Tyner & Clinton, 2010). It is the victim that feels uncomfortable and is claiming the allegations of sexual harassment. They are the one that feel that the acts of another are unwelcomed and violating their legal rights. Unfortunately, as a manager of fourteen Admissions Counselors, at times I don’t have the presence to be everywhere at all times. I have frequently not been present at urgent moments because I was helping or assisting another employee. I always made it a conscience effort to praise in public and coach or criticize in private. This was the course of action I took with Bob whenever I witnessed an inappropriate behavior from him. I took him into the conference room and let me know that what he just did is not acceptable. I did not want him to feel that he was being discriminated against because he was an older male. I know that it was my ethical duty to make sure that all of my employees have the right to feel safe in the workplace. This topic really sticks out to me because as a manager of a big company we are constantly having sexual harassment trainings and seminars on how to identify and prevent instances from occurring. A manager at the training shared with the rest of the managers a horrific case of sexual harassment from one of her employees. The employees name was Tim and he was a very skilled and tenure Admissions Counselor and often looked at as a great example of a successful hard working Admissions Counselor. When a female new hire Kristy was added onto the same team as Tim the manager advised that the new hire learn from Tim and create best practices and habits that Tim has. Kristy was near Tim a lot because she was given orders to learn from Tim. Tim would use this opportunity to flirt with Kristy constantly and asking her very intruding questions about her personal life such as, if she is dating anyone or if she is interested in a relationship or just â€Å"hooking up. † Kristy became very ucomfortable when Tim started to text message her at night saying that he is bored now that he is divorced and that he wants to meet her early in the morning to go over performance strategies. When Kristy finally confided in another employee the manager was brought to attention. The manager immediately told Kristy to go to HR right away and the manager went to her supervisor and they both took immediate actions. Because of Tim’s behavior Kristy was about to quit her job and she would attempt to be sick in order to stay away from Tim’s desk. Tim’s behavior created a hostile environment because Kristy was in fear of encountering Tim. This incident not only saddens me for Kristy, but also made me sad because of what Bob had done in the past to my fellow employees and I had not taken immediate actions like I should have. Legal Viewpoints: The U. S.  Supreme Court According to Crucet et al. (2010), â€Å"in 1980 the Supreme Court said that sexual harassment was a breach of the Civil Rights Act of 1964. † Title VII of the Civil Rights Act of 1964 â€Å"prohibits discrimination based on race, color, religion, sex, and national origin in hiring, firing, job assignments, pay, access to training, and apprenticeship programs, and most other employment decisions† (Mallor et al. , 2010, p. 1323). An important case that first appeared the â€Å"reasonable person† argument was in the Rabidue v. Osceola Refining in 1986 mentioned earlier in this paper. This case is often cited as the predecessor to the landmark Supreme Court case of Ellison v. Brady in 1991. In Ellison v. Brady (1991) the Supreme Court rules that â€Å"it is unreasonable to use a â€Å"reasonable person† standard since the rules were established by men† (Tyner & Clinton, 2010). This is where the â€Å"reasonable victim† came into existence. The court went on to say that â€Å"we note that the reasonable woman victim standard we adopt today classified conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment† (Tyner & Clinton, 2010). This Supreme Court ruling is of great importance. Many of times, harassers don’t even realize what they are doing is wrong because their perception of reality is off. Two important Supreme Court cases in 1998 created the framework for deciding whether or not employers were held liable for sexual harassment committed by its employees. The first was Burlington Industries v. Ellerth (1998) and the second was Farragher v. Boca Raton (1998). According to Cabassa (2011), â€Å"employers in jurisdictions where courts have allowed indemnity claims against employees for actions giving rise to harassment cases† are on the rise. There are many cases linking to sexual harassment in the workplace that they have launched a litigation committee that covers employment law to covering all legal issues related to the employment relationship (Cabassa, 2010). The question still stands on whether or not a company is liable for sexual harassment committed by one of its employees. The answer to that question lies on â€Å"whether the harasser was a coemployee or a supervisor of the victim, whether the victim suffered tangible job detriment and whether the company had sexual harassment policies, training, and grievance procedures† (Mallor et al. , 2010, p. 1328). Therefore, in order for a company to release themselves from association and allegations of sexual harassment a number of things need to be considered. Suggestions for Corrective Action According to Das (2007), â€Å"sexualization itself, as a precursor to signaling, could arguably stem both from a targets developmental trajectory and from later-life experiences that get layered onto this basic personality substrate. † Therefore, although Bob had these precursor straits of sexualization prior to him going through divorce, the later-life experiences of divorce layered into his life may have caused him to be more relentless. Regardless of his personal life experiences, Bob needs to be in line with the Employee Handbook and follow its policies. It is imperative each company have a Human Resource or Employees Relations Representative that can handle any allegations of sexual harassment. It is first and foremost important for a company no matter of size small or large, to have an Employee Handbook in place to identify what is considered acceptable and what can be recognized as sexual harassment. Then adequate training needs to be in place to help identify what may be considered as sexual and/or ostile environment harassment. After the training, each employee should be required to sign off on an acknowledgment form acknowledging that they know and understand the sexual harassment policy. Once those guidelines are set then it is important for managers and supervisors to take the allegations of sexual harassment very seriously and prevent any further occurrences to take place. If allegations of sexual harassment are made, it is important for Human Resources to open an investigation immediately to determine the facts of the case and to get each sides of the story.  Once the pieces of the puzzle are in place, then the next step is to take appropriate disciplinary action up to and including termination of the harasser. This measure will hopefully prevent sexual and hostile environment harassment. Conclusion In conclusion, the Employment Law has been established by Title VII of the Civil Rights Act of 1964 allowing every person the right to pursue a career and economic gain with the absence of sexual harassment in the workplace. The U. S.  Supreme Court has been a huge help in identifying the law surrounding and interpreting the U. S. Constitution as it pertains to sexual harassment. According to Tyner & Clinton (2010), â€Å"the Society for Human Resource Managers reported in 2002 that 97 percent of employers have written sexual harassment policies and that 62 percent of those employers provide training on sexual harassment. † Therefore, as a society we are on the right track to preventing harassment of any type in the workplace especially unwelcomed and unwarranted sexual advances.