Employment Law: The Jamie Jansen - Case Study Example

?Employment Law: The Jamie Jansen Case Since Jamie Jansen was already issued a right-to-sue letter by the EEOC, she can proceed to file a case in court against the employer for statutory violation of the following: the Family and Medical Leave Act (FMLA) and sexual harassment under §703 of Title VII of the Civil Rights Act of 1964 (CRA). She may also bring tort claims for actual, mental anguish, punitive and exemplary damages caused by the sexual harassment. Jamie may also sue for breach of contract for constructive discharge, if she decides not to return to work, by altering the terms and conditions of her employment or because of the extremely hostile environment in the workplace. Under the FMLA, which constitute Title 29, Chapter 28 of the United States Code, an employee is entitled to file a leave from work for a total of 12 workweeks in a 12-month period to care for, among others, a parent who is suffering from a serious condition (§ 2612 [a][1][c]). To avail of this right, an employee must have been employed by the employer for at least 12 months and for at least 1,250 hours of said period. The law assures the eligible employee under § 2614 that he/she shall be restored to the position he/she held before filing the leave when he/she returns to work and in addition, shall not suffer any diminution in salary or any other benefit by reason of such leave. Moreover, the employer must be employing at least 50 employees for the privilege to be applicable. Section 2615(a)(1) explicitly makes it unlawful for the employer to refuse the employee his/her rights under this law. It is evident that the refusal of Jamie’s employer to grant her a leave of absence is unlawful. The conditions required by the law to make Jamie eligible for leave have all been met: she has been employed for at least 12 months as proven by the yearly evaluation of her performance; the reason for the leave is the serious medical condition of a parent, and; the company employs more than 50 persons. Moreover, the employer did not only violate the law for refusing to grant her leave but for demoting her to an inferior position as well as reducing her annual pay. Jamie can also bring an action against the company’s Vice President for sexual harassment and against the employer for vicarious liability and failure to prevent the sexual harassment in the workplace. Sexual harassment prohibition is embraced in §703 of Title VII of the CRA 1964 as confirmed by §1604.11 of Regulations 1604 of the Equal Employment Opportunity Commission on Guidelines on Discrimination because of Sex. Sexual harassment is defined in the case of Scribner v Waffle House, Inc. 14 F. Supp. 2d 873 (1998), as any “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct is related explicitly or implicitly to an employment decision, or has the purpose or effect of interfering with work performance or creating an otherwise hostile or offensive work environment.” Title VII of the CRA 1964 prohibits it as a form of discrimination. There are two recognized modes of sexual harassment: “hostile environment” and “quid pro quo” (Goldman 2001 p. 200). “Hostile environment” refers to sexual harassment that gives emphasis on the environment created by the unwelcomed advances create. In Henson v City of Dundee 682 F. 2d 897, the Court ruled that sexual harassment that is so pervasive that it resulted in a hostile and abusive environment for the members of one gender creates a barrier to sexual equality in the same way that racial harassment impedes racial equality and is therefore, a violation of Title VII of the CRA 1964. On the other hand, “quid pro quo” gives emphasis on hierarchy and affects employee’s compensation and other terms and benefits of employment as casualties of the sexual harassment. The case of Barnes v Costle 561 F 2d 983 mirrors a “quid pro quo” sexual harassment in that the director of the Agency that hired the complainant repeatedly solicited sexual favors from her promising her every time that her employment status will be raised once she concedes to his requests. The Court ruled here that the protection granted by Title VII of the CRA 1964 extends to the individual subjected to sexual harassment, who may then institute a private suit on the strength of that protection. As a form of discrimination, it is important to show in both types of sexual harassment that the complainant was subjected to sexual advances that he/she found offensive and were not, in the first place, solicited or invited. In short, such sexual advances were unwelcomed by the complainant. It is also important to show that such acts of sexual harassment were known or ought to have been known by the employer, and failed to stop or take appropriate action to stop it. Finally, a charge of sexual harassment will fail if the complainant fails to prove that a form of discrimination has resulted as a result. This discrimination is manifested in the failure of the individual to be accepted for the job, if he/she is still an applicant or changes in the employment terms and conditions of the employee such as diminished compensation or an outright demotion in his/her position in the company, or failure to be promoted even if she/he is qualified for it, if he or she is already working for the company. For the liability to attach, it must be alleged and proved that the acceptance or rejection of the sexual advances was expressly or impliedly made the condition upon which the employment advancement or damage of the complainant depends on. Put another way, the complainant must prove that he/she was deprived of an employment benefit of which he/she was rightfully entitled to because of his/her rejection of such advances (Meredith 2007 pp. 446-447). In the cases of Burlington Industries Inc v Ellerth 524 US 742 (1998) and Faragher v City Boca Raton 524 US 775 (1998), the Court declared that when it is shown that the employee suffered tangible employment action, such as demotion, discharge or unwarranted reassignment, by reason of his or her supervisor’s harassment, the employer’s liability becomes absolute and affirmative defense cannot be proffered in court. In Jamie’s case, it is evident that the sexual harassment she was subjected to was the quid pro quo type as it originated from a senior officer of whom she was a subordinate and the fact that it affected her employment status, compensation and other employment benefits when she refused the sexual demands. The employer is liable because it failed to act Jamie can also sue for tort and recover mental anguish and punitive damages on account of the effects of the sexual harassment. In the Scribner case, mental anguish and punitive damages were awarded by the Court on the ground of tort because the CRA or the state law of Texas did not support it. The award of damages was therefore independent of the statutory liability of the employer. In Borg-Warner Protective Services Corp v Flores 955 S.W.2d 861 (Tex. Ct. App. 1997), the Court also awarded exemplary damages, which are discretionary awards, to serve as an example and deter others from committing the same acts complained of. Jamie should also be entitled to actual damages which she incurred in her medical and psychiatric treatment because of the emotional distress she went through after her demotion as well as any back pay that is owing to her. Jamie can also invoke breach of contract against the employer for failure of the latter to abide by the “for cause” clause in the company manual. Although no express contract bound the employment relationship between Jamie and her employer, Jamie cannot be classified as a purely at-will employee because of the “for cause” only clause in dismissal found in the company manual. An at-will employment, which generally governs employee-employer relationships in the US, can be terminated by either employee or employer at any time without cause, but this is made subject to certain exceptions, among which are: retaliatory discharge or those which violates provisions of certain statutes, and; implied contracts (Ford et al pp. 194-195). In Woolley v Hoffman La-Roche Inc 99 NJ 284 (1985), the NJ SC held that when an employment manual promises, in that case only impliedly, to terminate employees only for just cause and there is no disclaimer that the manual does not alter the nature of the at-will employment, such promise can be made enforceable against the employer. This action, however, is only available to Jamie if she decides or has already decided not to return to work because of the hostile work and environment in the workplace. In Pennsylvania State Police v Suders 542 US 129 (2004), the Court held that a constructive discharge although not effected through formal termination has nevertheless, the same effect as termination because the extremely hostile environment created by the sexual harassment of the plaintiff’s supervisors has become so intolerable that it compelled the employee to leave her job. Both kinds of termination result to “direct economic harm.” The inclusion of the “for cause” clause referring to the manner of termination of employees in the company manual, effectively prevents Jamie’s employer to terminate her without cause and doing so would subject the latter to a breach of contract charge if Jamie decides not to return to work because of the intolerable environment brought about by the sexual harassment of one of its senior management. As a judge in the case that Jamie might bring in court, I will decide in her favor on the grounds abovementioned and grant her award of damages, actual, punitive and exemplary, for the emotional distress and mental anguish she suffered on account of the sexual harassment and treatment the employer had subjected her with. References: Barnes v Costle 561 F 2d 983. Borg-Warner Protective Services Corp v Flores 955 S.W.2d 861 (Tex. Ct. App. 1997). Burlington Industries Inc v Ellerth 524 US 742 (1998) Civil Rights Act of 1964. Faragher v City Boca Raton 524 US 775 (1998), Ford, K. & Notestine, K. & Hill, R. (2000). Fundamentals of Employment Law. 2nd Edition, ABA Publishing. Goldman, A. & Corrada, R. (2001). Labour Law in the USA. 3rd Edition, The Netherlands: Kluwer Law International. Henson v City of Dundee 682 F. 2d 897 Meredith, R. (2007). “Sexual Harassment in the American Workplace” Employment Law by Alibekoya, A. & Campbell, D. Kluwer Law International. Pennsylvania State Police v Suders 542 US 129 (2004). Regulations 1604 of the Equal Employment Opportunity Commission on Guidelines on Discrimination because of Sex. Scribner v Waffle House, Inc. 14 F. Supp. 2d 873 (1998). The Family and Medical Leave Act. Woolley v Hoffman La-Roche Inc 99 NJ 284 (1985). Read More