Types of Sexual Harassment and Legal Defenses - Assignment Example

27 March Two types of sexual harassment and legal defenses The courts have determined two kinds of sexual harassment: “Quid Pro Quo” and “Hostile Work Environment” (Department of Justice, State of California, 2003, p. 1). Quid Pro Quo sexual harassment takes place when a manager/supervisor, asks for, either implicitly or explicitly or as a condition of employment decisions, that a subordinate yield to the former’s sexual advances (this occurrence can also include conditions, where the relationship was once reciprocal, but later stopped being reciprocal), and/or; requests for sexual favors or other verbal, visual, or physical action that has a sexual nature, through explicit, or implicit terms, or through relating the sexual requests to employment decisions (Department of Justice, 2003, p. 1). Some examples of Quid Pro Quo sexual harassment are asking for sex as a requirement for promotion and an implied statement that someone would be terminated, if the latter do not submit to the supervisor’s sexual advances. As for Hostile Work Environment type of sexual harassment, it happens when an employee experiences unwelcome sexual advances or gender-based behaviors that are adequately severe or persistent enough to hinder the person’s work performance, or to form a threatening, hostile or unpleasant work environment (Department of Justice, 2003, p. 2). Some examples are unwelcome sexual jokes and remarks and making demeaning statements about one’s gender. Employers can make use of several legal defenses. General employer defenses’ to sexual harassment are applicable to both quid pro quo and hostile work environment sexual harassment. They consist of, but are not limited to the following defenses: 1) “it didn’t happen,” 2) welcomeness, 3) the conduct was not sexual or was not based on sex, 4) the First Amendment; and 5) the “equal opportunity harasser”’ (Weitzman, 1999, pp. 29-30). Unique employer defenses are those defenses that contest particular factors of the quid pro quo or hostile work environment tests (Weitzman, 1999, pp. 29-30). They can be composed of: 1) no negative action was done or 2) business justifications were present for the actions done (Weitzman, 1999, p. 30). As for employees who feel that they have experienced or witnessed sexual harassment, they must take advantage of existing internal policies of their organizations, when present, and if not, report to the proper authorities. These employees must report the incident to their supervisor, manager, or other higher offices (Department of Justice, 2003, p. 3). Though not many sexual harassments can have witnesses, testimonies can be attained from people whom the victims have confided to (U.S. Equal Employment Opportunity Commission (EEOC), 1990, p. 7). Witnesses can be those who witnessed the sexual harassment at the workplace, or noticed changes in the victim’s or charged party’s behavior, and their testimonies can be used to charge the person doing the harassment (EEOC, 1990, p. 7). References Department of Justice, State of California. (2003, July 23). Management bulletin: Sexual harassment in the workplace. Retrieved from http://oag.ca.gov/sites/all/files/pdfs/eeo/03-07mc.pdf U.S. Equal Employment Opportunity Commission. (1990). Enforcement guidance: Policy guidance on current issues of sexual harassment. Retrieved from http://www.eeoc.gov/eeoc/publications/upload/currentissues.pdf Weitzman, A.H. (1999). Employer defenses to sexual harassment claims. Duke Journal of Gender Law Policy, 6, 27-59. Retrieved from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1026&context=djglp 2. Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA) (P.L. 101-336) is the most sweeping civil rights legislation that seeks to ban discrimination against people with disabilities. Public and private businesses, state and local government agencies, transportation and utilities, and all firms offering public accommodations and services are required to follow this law. The following areas that the ADA affects are: “Employment (Title I); Public transportation and state and local government services (Title II); Public accommodations (Title III); Telecommunications (Title IV; and Miscellaneous (Title V)” (Center for Psychiatric Rehabilitation, n.d.). The EEOC bans job discrimination that affect the following: “ all employers, including State and local government employers, with 25 or more employees after July 26, 1992, and all employers, including State and local government employers, with 15 or more employees after July 26, 1994” (U.S. Equal Employment Opportunity Commission (EEOC), 2008). The ADA has affected employers because they must ensure that they have policies and processes, as well as facilities and job designs, which follow ADA regulations. Employees with disabilities benefit from the ADA because they can have a more quality work life and career because of the protections that come from the ADA (EEOC, 2008). Title I of the ADA defends qualified individuals with disabilities from experiencing employment discrimination. The ADA states that a person has a disability if he/she has a “physical or mental impairment that substantially limits a major life activity” (EEOC, 2008). The ADA also applies to individuals who have “a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment” (EEOC, 2008). An individual can have the protection of ADA, as long as he/she has a record of having significant impairment. Significant impairment refers to an illness that greatly impairs main life activities, such as hearing, seeing, caring for oneself, and doing manual activities (EEOC, 2008). Employers have the obligation of providing reasonable accommodation to people with disabilities. Reasonable accommodation pertains to changes in the job or work environment that allows qualified people with disabilities to participate in the job application process, to do important aspects of a job, and to enjoy the same benefits and facilities as those without disabilities (EEOC, 2008). Some examples are offering modified devices and facilities and making the workplace accessible to people with disabilities (EEOC, 2008). References Center for Psychiatric Rehabilitation. (no date). The Americans with Disabilities Act (ADA), Boston University. Retrieved from http://www.bu.edu/cpr/reasaccom/whatlaws-adaact.html U.S. Equal Employment Opportunity Commission. (2008, August 1). The ADA: Your Responsibilities as an Employer. Retrieved from http://www.eeoc.gov/facts/ada17.html 3. Job Analysis A job analysis is the organized study of jobs to determine the work activities, tasks, and responsibilities that are related to performing specific job or group of jobs (Office of Human Resources, 2008). Some of the common methods of job analysis are the following, and organizations usually use two or more: 1. Observation. A trained worker/job analyst/supervisor/HR personnel observes a worker and records the tasks being done, how they are done, and how long it takes to have them done (Office of Human Resources, 2008). Two kinds of observation are continuous observation (observing the job for long periods of time) and sampling observation (observing the job at random and short periods of time) (Office of Human Resources, 2008). 2. Interview. A trained job analyst or officer/employee in charge interviews a worker using a standardized format. One or more employees are interviewed, with the results aggregated (Office of Human Resources, 2008). 3. Critical Incident. Behaviorally-based critical incidents are employed to illustrate the work, and a job analyst identifies the level of each behavior that is present or absent in the job (Office of Human Resources, 2008). 4. Diary. The worker records all activities and tasks in diaries, which will be used to determine the job tasks and responsibilities (Office of Human Resources, 2008). 5. Checklist. A worker or manager “check items on a standardized task inventory that apply to the job” (Office of Human Resources, 2008). The benefits of job analysis are: 1) It helps ensure that the selection process is assessing important job requirements in a reliable and regular manner, which results to hiring the right people for the right job; 2) It serves as a legal compliance tool for the U.S. Equal Employment Opportunity Commission and The Americans with Disabilities Act (ADA); and 3) It helps organizations cope with changing workplace demands (Biddle & Kuthy, 2012, p. 377). The challenges of job analysis are related to the time needed to perform it, analyst’s biases, and sources of information. Job analysis can be time consuming because of the effort and time needed to observe and analyze jobs (Biddle & Kuthy, 2012, p. 377). The process and/or outcomes of job analysis can also be affected by personal biases, especially if the job analyst does not have the proper skills and knowledge to conduct it (Biddle & Kuthy, 2012, p. 377). The sample size tends to be small, so the information gathered may not be enough to create reliable outcomes (Biddle & Kuthy, 2012, p. 377). Finally, mental competencies cannot be observed, and for many jobs, particular mental and emotional capacities are important (Biddle & Kuthy, 2012, p. 377). References Biddle, D.A., & Kuthy, J.E. (2012). Using job analysis as the foundation for creating equal employment opportunity in the workplace. In M.A. Wilson, W.Bennett, Jr., S.G. Gibson, & G.M. Alliger, The handbook of work analysis: methods, systems, applications and science of work measurement in organizations (pp. 365-380). New York, NY: Taylor & Francis. Office of Human Resources. (2008). Introduction to job analysis. University of Minnesota. Retrieved from http://www1.umn.edu/ohr/pay/classification/jobanalysis/ 4. Alternative work schedules/options Flexible work options are made available to employees, although they considered as possibilities and not as entitlements (Stanford, 2012). These options are affected by several factors: “the nature of the work to be performed, productivity, federal and state laws, union contracts, restrictions of funding sources, task interdependence, and other operational constraints” (Stanford, 2012). Alternative work schedules are becoming popular because an increasing number of employees want to balance work and life goals, technological advancements allow for workplace flexibility, heightened competitiveness for certain job positions, different life and work needs of employees coming from various generations, and the demands on a dual-income or single-parent households, among other reasons (Society for Human Resource Management, 2008, p.2). The Society for Human Resource Management (SHRM) conducted a 2008 survey to determine the response of employers and employees to workplace flexibility. They learned that forty-seven percent of organizations formally provide part-time/reduced- hours schedules to their employees (SHRM, 2008, p. 7). Furthermore, big organizations (63%) were more likely to offer flexible work schedules than small organizations (45%) (SHRM, 2008, p. 8). There are two kinds of alternative work schedules: compressed and flexible. A compressed schedule “involves longer but fewer work days, so that you can complete a full 80 hours during each biweekly pay period in less than 10 work days” (U.S. Department of Commerce, n.d.). Compressed schedules are fixed schedules, such as 4-10, or working only for four days, but for ten hours per day. A flexible schedule consists of a “variety of options, all involving certain core hours during which everyone must be present, coupled with flexible arrival and departure times. Credit hours are another element of flexible schedules” (U.S. Department of Commerce, n.d.). Flexible schedules are more flexible and can be changed upon supervisor’s approval. References Society for Human Resource Management. (2008). Workplace flexibility in the 21st century: Meeting the needs of the changing workforce. Retrieved from http://www.shrm.org/research/surveyfindings/articles/documents/09-0464_workplace_flexibility_survey_report_inside_finalonline.pdf Stanford University. (2012). Human resources: Flexible work options. Retrieved from http://elr.stanford.edu/flexible-work-options U.S. Department of Commerce. (no date). Alternative Work Schedules (AWS). Retrieved from http://hr.commerce.gov/employees/leave/dev01_005923 5. Internet Recruitment Internet recruiting has become so important because advancements in technology made it easier to find and select candidates online, and young and old workers alike are attracted to the efficiency of looking and applying for jobs online. The Association for Internet Recruiting surveyed the Internet recruiting behaviors of 1,000 organizations and it learned that around half of the companies hired 1 to 20% of their people from online recruitment (Mondy, 2010, p. 3). The survey of the SBC Internet Services showed that 82 percent of college graduates intend to use the internet to look for job openings or career information and around 66 percent will e-mail their resumes to prospective employers (Mondy, 2010, p. 3). There are several ways of internet recruitment, particularly intranet recruitment for internal//external recruitment, putting job ads at the company website, and using internet employment agencies, such as Headhunter.net and Hotjobs.com (Mondy, 2010, p.9). The steps for online recruitment are: 1) Identifying vacant positions; 2) Determining and evaluating internet recruitments options; 3) Drafting the ad; 4) Placing the job ads; and 5) Measuring the responses to and recruitment rates for different internet recruitment tools/approaches/agencies (Mondy, 2010, p. 3). The benefits of online recruiting are: 1) Companies can find employees faster by casting a larger net for a lower cost; 2) Internet ads have a longer life for and higher flexibility to changes than print ads; 3) Some software or application can be used to reduce the number of resumes by identifying key elements in them; 4) Companies can provide detailed job descriptions, which can attract more applicants; and 5) Applications can be made electronically, which saves data entry time and reduces errors (“Benefits and disadvantages of online recruitment”, n.d.). The disadvantages of online recruiting are: 1) Companies cannot reach job seekers who are not on the web or actively searching online; 2) It is not beneficial for jobs that need local residents; 3) Companies face increased competition due to accessibility of the Internet; and 4) HR meets the challenges of assessing the credibility of resumes. References “Benefits and disadvantages of online recruitment.” (n.d.). Wiley. Retrieved from http://higheredbcs.wiley.com/legacy/college/turban/0471229679/add_text/ch07/erecruitment.pdf Mondy, R.W. (2010). Human resource management (11th ed.). Retrieved from http://www.prenhall.com/managementzone/mondyhrm8/mondyhrm8.pdf Read More