Sexual Harassment in Working Place - Assignment Example

?Sexual harassment in working place Meaning of sexual harassment A form of gender discrimination, sexual harassment is mainly of two kinds. They are 1) Hostile environment and 2) Quid Pro quo. As sexual harassment involves emotional situations, objective assessment of it is suggested by a formula A+B+C. If all of them are present, then there is sexual harassment. For hostile environment, the formula is A= unwelcome, B= sexual conduct and C= severity of conduct is such that it has created a hostile working condition. For Quid Pro Quo, And B are the same as in the former but C represents victim’s acceptance of the uninvited sexual behavior. Behavior of a perpetrator is still unwelcome even if it is intended in good spirit. Regardless of the behavior of the perpetrator, it is the feeling of the victim about the behavior that becomes relevant. The victim does not have to express her/his displeasure to the perpetrator. It is sufficient if the victim does not reciprocate by returning the behavior, not laughing at the jokes or show resentment, turn away or begin avoiding the offender. It is the body language of the victim that matters. Even if there is no expression, behavior is unwelcome to satisfy the test. Thus, the 'A' element is entirely subjective on the part of the complainant. Though the complainant may appear to be very sensitive, one should not substitute one’s judgment for the victim’s judgment. It should be only examined whether the victim genuinely felt the perpetrator’s behavior as unwelcome. The complainant might have encountered similar behavior from others but singled out a particular person s behavior as unacceptable or unwelcome. In legal sense, it is certainly perfect to disapprove of certain conduct of certain people. A woman ‘s complaint can be valid if she finds a new colleague’s dirty joke offensive though she might have told the same joke to another colleague she knows for a long time. In quid pro quo complaints, the complainant might have made the behavior welcome and later claim that such relationship was not resisted in order not to lose her/his job. Employers must take care to keep a confidential note of the time and date and admissions of the two opposite sexes’ relationship with each other so that it can be handy if either party turns hostile later. The management is liable for its supervisor’s sexual harassment of a subordinate even if the management has condoned the supervisor’s sexual harassment and has a written policy to that effect. In California, an employer can avoid liability if the complainant could have avoided such situations without undue risk, expense or humiliation. Under federal law, employers may claim affirmative defense in case of supervisors engaging in sexual harassment without favoring the victim. It is an absolute defense available to employers under federal law but there should be available the elements of avoidable consequence doctrine. They are 1) the employer has already taken steps to prevent and correct sexual harassment at workplace. 2) the employee without reason failed to make use of the preventive and corrective measures. 3) The measures would have prevented the harm had the complainant made reasonable use of them (Whittenbury). USA Title VII of the Civil Rights Act 1964 prohibits sexual discrimination that includes sexual harassment among other forms of discrimination based on race, color, religion, sex, pregnancy and national origin at workplace or work-related matters. All private establishments, state and local governments and educational institutions employing fifteen or more individuals for twenty or more weeks per year come under the purview of this Act. The others include private and public employment agencies, labor organizations, joint labor-management committees, U.S. companies outside the U.S. employing U.S. citizens (Bell). Civil Rights Act of 1964 is a federal law. In California, there is a state level act namely Fair Employment and Housing Act that primarily prohibits sexual harassment at workplace (Whittenbury). It was in the year 1980, the Supreme Court observed that sexual harassment amounted to breach of Civil Rights Act 1964. Between 1978 and 1980, the country witnessed institution of sexual harassment cases costing companies $ 189 million. It went up to $ 267 million during the years 1985-87 (Crucet, Graells and Cabral). Equal Employment Opportunity Commission (EEOC) started in 1965 is entrusted with the job of promoting equality in the workplace and prohibiting discrimination in employment including sexual harassment. It has been estimated that nearly 75 % of working women have already suffered or will suffer sexual harassment in their workplaces. In 2010, 11,717 sexual-harassment complaints were filed with the EEOC and 84 % of the complainants were women. And only 27.2 % of the complaints were decided in favor of the complainants resulting in a recovery of $ 48.4 million for the complaints apart from the monetary benefits received through litigation (Bell). Another report says that at least fifty percent of women and fifteen percent of men in the U.S. will undergo sexual harassment at some time or other during their employment (Bell, McLaughlin and Sequeria). Finch Air-conditioning and Heating inc. case: EEOC’s intervention resulted in a payment of $ 80,000 by the employer as claims for sexual harassment and constructive discharge to the female employees. EEOC found that the female employees of the company were being sexually harassed and discriminated by the owner of the family-owned and operated business by misusing his power and position. The owner used to question his female employees about their sexual preferences by first mentioning his preferences and touching them without their permission besides forcing an employee to touch his private parts. The company wherein sexual harassment had been condoned within the workplace was also ordered to train their employees, owner and managers to be fully conversant with employment discrimination laws and also setup redress mechanism for complaints on sexual discrimination among others. Employers are liable to employees for sexual harassment at the hands of customers. This is an occupational hazard as considered by the researchers who say that avoidance leads to lower productivity, stress and turnover. In a typical case, Love’s Travel Stops compensated their 18 to 20 year old female cashiers. Arizona Truck Stop had to pay $ 70,000 in an EEOC suit for sexual harassment by customers. Love’s Travel Stops and Country Stores Inc., had to pay as part of sexual harassment settlement following a lawsuit of the EEOC which alleged that the employer had subjected his two female cashiers to repeated sexual abuse by its customers. The cashiers were sexually abused by the truck drivers who were Love’s regular customers and indulged in undesirable sexual touching and pressing, and making crude and obscene innuendos. EEOC held that the employer had been aware of such harassments but tolerated them for business exigency and advised victimized employees to tolerate them (Bell). China In China where a strong patriarchal tradition prevails, women are expected to be subservient to men who are the breadwinners for the family. Divorce is shameful and father takes care of his divorced daughter and children. Modern Chinese women are fast becoming assertive and economically independent. They have started occupying leadership positions in various fields. Divorce rates are also on the increase. Although women are becoming increasingly assertive, recent studies indicate that they still consider themselves inferior to men (Wilen-Daugenti). It therefore follows that sexual harassment of women at workplaces is largely prevalent in China and women in China remain unprotected with a weak Chinese law against sexual harassment. A recent (April 2011) study by a Chinese business investigation group has reported that 84 % of women in China have undergone sexual harassment in some form or other and 50 % the sexual harassment had taken place at workplaces. Another survey of May 2011 by Women’s Watch-China (WWC) found that 19.8 % of the respondents had experienced sexual harassment and 55.1 % of them were women. Following its commitment under Article 11 of the Convention on the Elimination of All Forms of Discrimination against women in the field of employment, China recognized the concept of sexual harassment and amended PRC Law on the Protection of Women’s Rights and Interests (LPWRI) in 2005 by prohibiting sexual harassment of women and provided for redress mechanism through administrative punishment for perpetrators or civil action in Court without any clear definition of sexual harassment and criminal justice system for prevention and punishment. Majority of the victims are silent about their harassment due to fear of losing lawsuits for want of effective evidence. After detailed study, Ministry of Human Resources and Social Security has been made responsible for prevention and punishment of sexual harassment as also the All-China Federation of Trade Unions, the Communist Youth League and the All-China Women’s Federation for helping those who suffer from sexual harassment. Yet there has been no progress in containing this problem as reported by a Commission (AnnualReport). In a first ever case sexual harassment case of the country, a Chinese court turned down the claim of a 30- year old woman plaintiff for want of evidence and legal basis. The complainant’s boss had picked her in his office and asked to have sex with him on 26 October 2001. The plaintiff by name Ms. Tong working in state-owned enterprise had been repeatedly being touched by her boss ever since 1994 and he had asked her to visit a hotel along with in order to have sex with him at one time. He was reprimanded when she complained but she was asked to stay away from the office and denied bonus and allowances due to her. The court ruled as said above in spite of equal rights guaranteed by the Law on the Protection of the Rights and Interests of Women. Ms. Wang Simei of Women’s Studies Institute at the All China Women’s Federation conceded to the guarantee of equal protection provided by the Country’s Constitution and labor law but expressed helplessness for want of strong policies to implement the equal protection. Although such a conduct could be booked under criminal law under “hooliganism”, the law required that harassment should have been perpetrated in a public place (Granrose). Recently national law was implemented in 2007 making sexual harassment of women liable to penalties and civil claims on the perpetrator by amending the LPWRI of 1992 in 2005. Although in a few cases, Chinese courts have granted monetary compensation and other remedies, they are only on token basis and not deterrent enough. China recognizes sexual harassment of women by men and not vice versa. Further, Chinese law makes burden of proof mandatory on women harassed and there is no provision for internal redress mechanism within the workplace. There is no provision requiring employers to formulate code of conduct for employees as a warning against sexual harassment (Srivatsava). A recent study of 2012 says that sexual harassment in corporate workplace has increased especially in the form of verbal sexual harassment. Besides, the study concludes that handling of the complaints by competent people within the workplace and reporting to the police are the effective methods to deal with sexual harassment (Zhang and Zhang). An exclusive study in Chinese health settings says that every other healthcare worker is subjected to at least one form of workplace violence such as physical assault, emotional abuse, threat of assault, verbal sexual harassment, and sexual assault at the rates of 11 %, 26 %, 12 %, 3 % and 1% respectively. Risk factors are indentified as work in psychiatry, emergency, pediatrics and surgery departments, male gender, divorce/widowed status, and long working hours (Wu, Zhu and Li). In a 2007 case, though a Chinese woman won her sexual harassment case for the first time in Chinese history, lost her job following a recommendation to that effect by the company’s own trading union since the woman wanted apologies from her boss and a guarantee that such harassment would not happen again. The Chinese Court awarded $ 440 (3,000 yuan) as compensation and asked company to issue apology letter. Interestingly, the boss who harassed her was Japanese as the indicted company was Japanese. Her boss used to place his hands on her breasts besides often touching her neck and waist from behind (Anonymous). Discussion and Conclusion Sexual harassment occurs due to power differentials and gender asymmetries prevalent in patriarchal societies which make women vulnerable to more powerful men. Power differentials approach explains that males whose dominance is threatened by assertive women, resort to denigration of women through sexual harassment (Das). A meta-analysis involving 41 studies consisting of 70,000 respondents revealed that sexual harassment experiences were negatively associated with reduced job satisfaction, reduced organizational commitment, withdrawal from work, ill health, and post-traumatic stress disorder symptoms (Willness, Steel and Lee). The foregoing analysis would show that while the U.S. recognized sexual harassment as early as in 1970s and invoked Civil rights Act of 1964, China is still inching forward in spite of bringing in amendments in 2005 to its LPWRI of 1992. A lone successful case in China however resulted in losing of job by the female employee. While in the U.S. sexual harassment of males has been recognized, Chinese law is silent on that aspect. The most prominent reason for sexual harassment is attributed patriarchal culture which is more prevalent in China and it is not altogether absent in the U.S.A. Law practitioners in the U.S. have to take into account of policy announcements and redress mechanism within the workplace that are mandatory while those in China have to contend with the burden of proof onus on the complainants and male dominated societal culture prevailing therein. References AnnualReport. 2011. www.cecc.gov, Congressional-Executive Commission on China. Anonymous. "China woman wins first sexual harassment lawsuit, loses job." Carnalnation 5 November 2012. Bell, Myrtle P, Mary E McLaughlin and Jennifer M Sequeria. "Discrimination, Harassment, and the Glass Ceiling: Women Executives as Change Agents." Journal of Buisness Ethics 37 (2002): 65-76. Bell, P Myrtle. Diversity in Organizations. 2. U.S.: Cengage Learning, 2011. Crucet, Carimercy, et al. "SEXUAL HARASSMENT IN THE WORKPLACE." Proceedings of the Academy of Legal, Ethical and Regulatory Issues. New Orleans : Allied Academies International Conference, 2010. 16-20. Das, Aniruddha. "Sexual Harassment at Work in the United States." Arch Sex Behav 38 (2009): 909-921. Granrose, Cherlyn Skromme. Employment of Women in Chinese Culture:Half the sky. MA, USA: Edward Elgar Publishing, 2005. Srivatsava, D K. "Progress of Sexual Harassment Law in India, China and Hong Kong: Prognosis for Further Reform." Harvard International Law Journal 51 (2010): 172-180. Whittenbury, K Beth. A Manager's Guide to Preventing Liability for Sexual Harassment in the Workplace. CA: Kolbury Publishing , 2012. Wilen-Daugenti, Tracey. China for Businesswomen:A Strategic Guide to Travel, Negotiating, and Cultural Differences. Berekely, CA: Stone Bridge Press, Inc, 2007. Willness, Chelesa R, Piers Steel and Kibeom Lee. "A META-ANALYSIS OF THE ANTECEDENTS AND CONSEQUENCES OF WORKPLACE SEXUAL HARASSMENT." Personnel Psychology 2007: 127-162. Wu, Siying, et al. "Workplace violence and influencing factors among medical professionals in China." American Journal of Industrial Medicine 55.11 (2012): 1000-1008. Zhang, Xiaobing and Zewei Zhang. "Investigation and Analysis of Sexual Harassment in Corporate Workplace of China." Sociology Mind 2.3 (2012): 289-292. Read More