What Civil Rights Laws May Prohibit Marwans Conduct - Essay Example

What civil rights laws may prohibit Marwan’s conduct with his fellow co-worker? Explain. Sexual harassment, like that committed by Marwan against his fellow female actor, involves unpleasant, invasive, or persistent behavior in the workplace based on an individual’s sex that adversely impacts the job of a reasonable individual. Marwan’s conduct with his fellow co-worker is outlawed by the Title VII of the Civil Rights Act of 1964. Title VII outlaws discrimination in the workplace based on sex, religion, nationality, and racial/ethnic affinity. In general, there are two recognized, legally forbidden forms of sexual harassment—(1) quid pro quo and (2) hostile work environment. Quid pro quo implies that submission to or rejection of a sexual desire is exercised as the core of a work-related decision. On the other hand, hostile work environment implies that an employee experiences unwanted physical or verbal sexual act, such as demands for sexual services and other behavior of a sexual character that is either very serious or persistent that it negatively influences her capacity carry out the job. Marwan’s conduct with his fellow co-worker involves a hostile work environment. However, Title VII does not seem to apply to park guests. There was no specific mention of sexual harassment against customers, yet it is the responsibility of the management to deal with the problem. The management is the forefront as regards issues of employee behavior and performance. Primarily, and most significantly, any management would not allow a workplace culture that permits any kind of harassment to take place. In legally challenging issues, like harassment, as an employer, showing or proving that the organization adopted the needed policies or measures is imperative. Indeed, proving that the organization responded promptly and that the punishment against the harasser was severe is also vital. Nevertheless, it was stated that any person who is affected by the sexual harassment can file a complaint against the perpetrator. Hence, the park guests who were sexually harassed by Marwan can file a complaint against him. The park guests should turn to the complaint procedure and prescribed process as specified in the sexual harassment policy of the company. The company has the obligation to respond promptly and appropriately to sexual harassment complaints. Did Marwan commit sexual harassment? If so, what type? Explain your answers and the terms you use. Marwan commits sexual harassment both against his female co-worker and the park guests through physical touching. In general, where a single invasive, unpleasant event takes place that is adequate in and of itself to represent an infringement of Title VII, it includes physical touching. Placing one’s hands on the female guests’ behind and grabbing the breast of one female co-worker are both considered outrageous harassing act. Deliberately touching another individual’s intimate body parts is normally regarded adequately offensive to affect the working environment and comprise a breach of Title VII. A single unwanted physical act can severely damage the working environment of the victim. In these circumstances, it is the obligation of the employer to prove that the offensive act was not adequately serious to form a hostile work environment. Marwin’s conduct toward the park guests can also be classified as sexual annoyance. Sexual annoyance is a condescending and unsolicited sexually based act that is invasive, unpleasant or threatening to the victim, yet has not immediate link to any work-related benefits. However, the meaning of subjective terms such as annoying, offensive, and unwelcome remains under the specific interpretation of courts. What is the legal nature of Marwan’s employment? Explain your answers and the terms you use. In general, there are three major classifications of employment: (1) employees; (2) workers; and (3) self-employed. In the case of Marwan, the legal nature of his employment can be classified as self-employed since he does not have an employment contract with the company. He is more likely to be employed to play as a character actor for Studio Five Theme Park over a specific duration for a fee. Therefore, Marwan does not have employment rights, but he has a certain extent of legal protection. For instance, he should be given a healthy and secure working environment and should not be discriminated against. Current lawsuits suggest that there is no single adequate criterion leading the question whether an individual is self-employed or not. Whether a worker is self-employed or not relies on an array of aspects, but the ultimate judgment is not made by totaling the number of aspects indicating employment and evaluating that outcome against the number indicating a self-employed status; the courts have definitely turned down that method. What actions and steps should Studio Five take against Marwan? Explain what actions you considered and why you either recommend them or reject them. Studio Five has a legal and, perhaps, a moral duty to quickly conduct an investigation of the complaint. Furthermore, if it is established that unacceptable action has taken place, the company should take appropriate or required measures to put an end to such action and discourage future cases of sexual harassment in the workplace. As stated in the Equal Employment Opportunity Commission (EEOC) and specified in the Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, corrective steps must be created to end the harassment, mitigate its consequences on the victims, and make sure that the harassment does not happen again. These corrective steps have to be those that the employee chooses or demands, on condition that they are practical and useful. In establishing disciplinary steps, the EEOC specifies that managers must remember that the employer may be held responsible if the harassment continues. Simultaneously, managers could have worries that extreme disciplinary steps could make the employer vulnerable to assertions like unlawful discharge, and could merely be inapt. In order to fairly deal with the conflicting issues, disciplinary steps must be proportionate to the severity of the wrongdoing. If the harassment was negligible, like a few indecorous comments by a person without a past history of the same misbehavior, then a verbal reprimand and counseling may be what are needed. In contrast, if the harassment was serious or pervasive, like that of Marwan’s, suspension or discharge could be suitable. Besides taking into consideration the severity of Marwan’s behavior that led to the harassment complaint, disciplinary steps must consider any previous improper behavior by Marwan. If Marwan performed the same behavior toward another employee and/or customer in the past that led to the punishment, the disciplinary measure was obviously unsuccessful in stopping the harassment. This past punishment would not be sensibly expected to end the misconduct, for it was unsuccessful in the past, and more severe disciplinary measures will be needed. The EEOC stresses that corrective steps must not negatively affect the accuser; hence, for instance, if it is required to keep the parties separated, then Marwan must be relocated, except if the complainant chooses otherwise. Corrective measures that punish the complainant may amount to illegal retaliation and are ineffective in remedying the harassment. Corrective steps also must resolve the consequences of the harassment. These steps must be able to situate the complainant in an environment she would have been had the harassment did not take place. The EEOC presents some examples of steps companies could implement to end harassment and to make sure that it does not happen again: Warning or reprimand, in writing Transfer or reassignment Demotion Reduction of wages Suspension Discharge Training or counseling of the harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy Monitoring of the harasser to ensure that harassment stops Furthermore, the EEOC provides some instances of steps that could be adopted to mitigate the consequences of the harassment on the victim: Restoration of leave taken because of the harassment Expunging negative evaluation(s) in employee’s personnel file that arose from the harassment Reinstatement Apology from the harasser Monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the workplace because of the complaint Correction of any other harm caused by the harassment (e.g. compensation for losses) Studio Five must put into writing or record any disciplinary measures implemented to stop Marwan’s misconduct and to mitigate the consequences of the harassment on the female employee and park guests. Records must include corrective measures, training given to Marwan, and regular discussions with the victims to ensure that the harassment has stopped. Discuss Marwan’s allegation that he is being discriminated against based on his disability and what response Studio Five may have to that allegation? In case Marwan accuses Studio Five of discrimination based on his disability, the company could specify a number of particular accommodations made to make the workplace comfortable for Marwan. The Americans with Disabilities Act (ADA) listed some of these reasonable accommodations. Studio Five could use these cases to prove that they did not discriminate Marwan because of his disability. First, the company may show that current facilities are made usable for their employees who had physical disabilities, like Marwan; second, the company may claim that it restructures jobs, such as reducing working time for the disabled so that they can go to medical treatments; third, giving a sensible amount of supplementary honorary leave for medical purposes; fourth, assigning provisional workplace experts to help in training; and so on. There are only some of the possible adjustments or accommodations made by Studio Five for their disabled employees, like Marwan, that it can use to prove that Marwan’s allegations are not true. The 2010 Equality Act (EqA) outlaws the ‘unfavorable treatment’ of an individual with a disability where the cause of the unfavorable treatment is not the impairment itself but those that emerge because of the disability. A case in point is if Marwan is disciplined because he has been absent for several days because of pain in his legs. Marwan has been absent due to his physical disability and hence Studio Five’s judgment to deal with this as a disciplinary issue instead of implementing the absence rules to consider Marwan’s disability could constitute discrimination. In this case Marwan does not have to compare himself to somebody else; he simply has to prove that he was treated harshly or disparagingly and that such treatment was associated with his physical disability. If Marwan complains that he has been discriminated against because of his physical disability Studio Five will be given the chance to defend the allegation. Discrimination caused by the disability can be defended if it is an impartial means of attaining an acceptable goal. This implies that Studio Five can defend this form of discrimination by proving that there was a valid justification for it and that the measure carried out was justifiable. For instance, Studio Five could defend controlling or disallowing lengthy absences if it would be ineffectual for them to have a paid worker absent for too long. Studio Five will not be deemed guilty of discrimination based on disability if they were not aware of Marwan’s disability. Nevertheless, if Studio Five had information that showed that Marwan had a physical disability, the company will be dealt with as having been made aware of Marwan’s disability at least from the moment they had obtained such information. If the female employee sues Studio Five Theme Park, what defenses can Studio Five use? Are they liable for Marwan’s conduct even if they were unaware of and did not approve of Marwan’s actions? The liability of Studio Five for Marwan’s misconduct depends on the position of Marwan in the company, and the form of sexual harassment being complained. Hence, even though the female employee can substantiate that she was a victim of sexual harassment, it is likely that the company may not be held responsible. Studio Five is firmly liable yet could try to prove as an affirmative defense that it implemented appropriate, sufficient measures to discourage or quickly rectify improper conduct and Marwan was unjustly unable to make use of the company’s anti-discrimination policy, or if not to prevent or lessen any damage done. If Studio Five was aware or must have been aware of Marwan’s misconduct towards a female co-worker and park guests and the company did not respond, take steps, or reasonably take action on their knowledge, they could be held responsible for negligence. The legal detail in this case is that harassment is a deliberate misconduct. Normally, one individual is not accountable for the deliberate misconduct of another individual. It becomes difficult with discrimination however, for employers are normally responsible for the behavior of their workers that are in the range and breadth of the job description. Hence although discrimination is often deliberate, the outcome of discrimination is that a person is discharged, punished, demoted, or other unfavorable employment disciplinary steps. Because hiring, discharging, and reprimanding workers are part of the duty of all employers, the organization is mostly accountable for unlawful discrimination. If Marwan was a member of a union that had a collective bargaining agreement with Studio Five, would that change any of your previous answers? If so, why? What types of company policies, procedures, and actions should businesses employ to avoid harassment of their employees? Every company must create policies, procedures, and actions against sexual harassment and a usable and helpful complain system. The policy, as well as the complain process, must be given to all employees in the organization at the moment of hiring and intermittently afterward. Furthermore, every employee must be obliged to agree to an acknowledgement paper specifying that s/he obtained a written or printed copy of the policy and complain process. One of the most effective instruments for discouraging and eradicating sexual harassment and discrimination in the workplace is a documented company policy. This policy must articulate firm condemnation of sexual harassment and must emphasize that the company will execute needed disciplinary measures against those who break up the policy. A major component of formulating and enforcing a policy against sexual harassment is the participation of senior managers. Policies are given greater weight or importance if they have the support of senior management, for such support from the management shows that the company strictly disapproves of sexual harassment and will not allow such offenses. An open, decisive declaration by senior management that misconducts will not be tolerated will reinforce the eradication of many improper behaviors in the workplace. Managers are in the greatest position to fight sexual harassment in their organizations. Primarily, managers have to be a role model with their own behavior and by showing a firm position against sexual harassment in the workplace. Reacting promptly to complaints, carrying out proper and extensive investigations, and dealing with employees who were discovered to have taken part in sexual harassment regardless of their position in the company gives out a decisive message that misconduct will never go unpunished; the objective of any policy against sexual harassment is to put an end to misconduct in the workplace before it escalates to claims of unlawful harassment. An understandable, unambiguous policy that clarifies that is improper and what workers must do if they experience improper behavior is crucial in preventing and ending sexual harassment in the workplace. EEOC declares that “an anti-harassment policy and complaint procedure should contain, at a minimum, the following elements”: A clear explanation of prohibited conduct Assurances that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation A clearly described complaint process that provides accessible avenues of complaint Assurances that the employer will protect the confidentiality of harassment complaints to the extent possible A complaint process that provides a prompt, thorough, and impartial investigation Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred These components are the least that should be included in the company policy against sexual harassment. The policy should be clear and promptly distributed and explained to the members of the organization to prevent any problems or charges of misinformation. 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