Sexual Harassment for Employment Law - Research Paper Example

Sexual Harassment Paper Introduction Employment law is a branch of law that regulates relations at the workplace. In order to ensure fair treatment, employment law protects unfair treatment and exploitation of individuals based on their sexual orientation. This paper seeks to discus sexual harassment. The paper will explore concepts of sexual harassment and provide a case analysis. Define sexual harassment as the term is used legally. Legal definition of sexual harassment Sexual harassment, as used in the legal scope, refers to an “unsolicited, unreciprocated behavior” that is sexually based and to which the recipient has not consented or is not, under normal circumstances expected to permit (Moffatt, 2007, p. 225). It therefore refers to unwanted sexual advances to a party who does not appreciate the advances. Further, the definition of sexual harassment considers the position of the recipient relative to the offender to identify elements of duress. As a result, the definition of sexual harassment is not limited to the recipient’s objection to the act, but the perception of the recipient over the act. Examples of sexual harassment based on the definition would therefore include developing a “hostile working environment,” either orally or by deed that is gender biased and unfairly treating a person of a different sex because of his or her sex orientation (Moffatt, 2007, p. 225). Explain how sexual harassment differs from gender discrimination. Difference between sexual harassment and gender discrimination Gender discrimination defines unfair treatment to a person based on the recipient’s gender. A significant difference therefore exists between sexual harassment and gender discrimination. The first difference lies in the definition of gender and sex. Gender defines societal roles of a person in terms of masculinity and feminism while sex defines a person as either a male or a female. While sexual harassment refers to an unfair treatment of a person for either being a male or a female, gender discrimination is not based on sexual orientation. This relates to another difference between sexual harassment and gender discrimination, the sex of the offender in relation to the recipient’s sex. While sexual harassment is an unfavorable advancement from a person of a given sex to another of a different sex, gender discrimination can be experienced between people of the same sex as well as between people of opposite sexes. Similarly, the nature of the event that constitutes the offence also differentiates between sexual harassment and gender discrimination. Sexual harassment arises from the attitude of the recipient while gender discrimination is based on the offender’s actions. This means that an act does not constitute sexual harassment if the recipient party welcomes it. On the contrary, an act of gender discrimination is material irrespective of the recipient’s perception (Alibekova and Campbell, 2007; Moffatt, 2007). Provide the legal definition of "quid pro quo" (also known as "vicarious liability") sexual harassment. Provide one example of a behavior which could be found to be quid pro quo sexual harassment. Quid pro quo Quid pro quo is a class of sexual harassment in which senior personnel asks for “sexual favors” in exchange for a decision that benefits an employee (Alibekova and Campbell, 2007, p. 446). For an act to be considered a quid pro quo sexual harassment, the employee must prove that his or her reactions towards the senior’s advances resulted into unfavorable treatment. This must supplement proof for other elements of sexual harassment that includes the existence of an unwelcomed act and the offender’s knowledge that the act would constitute a sexual harassment. An example of a quid pro quo sexual harassment behavior is a case in which a human resource manager asks for sexual favors in order to facilitate promotion of an employee (Alibekova and Campbell, 2007). Provide the legal definition of hostile environment sexual harassment. Provide one example of a behavior which could be found to be hostile environment sexual harassment. Hostile environment sexual harassment A hostile environment sexual harassment refers to an employer’s liability due to sexual harassment suffered by an employee at the work place in the hands of co employees or a third party. The principle for the liability is the responsibility of the employer to protect an employee from sexual harassment while the employee is at the work place. An example of a behavior that can constitute hostile environment sexual harassment is an employee’s unwelcomed sexually oriented contact with another employee (Alibekova and Campbell, 2007). List the factors which contribute to a determination of whether behavior is sexual harassment. Factors that contribute to determination off sexual harassment For a case to be determined as a sexual harassment, the claimant must prove essential elements of sexual harassment. The first element to be determined in a sexual harassment case is the category of the claimant as either a man or a woman for determination of sex orientation concept. The plaintiff must also prove existence of an unwelcome act that defines sexual harassment such as contact, verbal or other advancements. Other elements include sexual orientation of the subject act, unfavorable treatment to the employee due to reaction to the harassment and the offender’s rationale that the act constitutes sexual harassment (Alibekova and Campbell, 2007). Define the standard by which "unreasonable" behavior is determined. Unreasonable behavior The standard of unreasonable behavior in sexual harassment case is determined by the rationale normal reasonable person and not by the sensitivity of the offended party (Marshall, 2005). Explain what situations are considered "severe or pervasive" and why these terms are important. Severe and pervasive situations and importance of the terms A situation is said to be severe and pervasive if it sufficiently changes the claimant’s working environment. The change must further be associated with an abusive effect. The terms are important in protecting people from arbitrary accusation (Business and legal reports, 2005). Give the main legal reason why every company should have a valid written policy against sexual harassment (besides the fact it is the "right" thing to do.) Legal reason for anti sexual harassment policy The main legal reason why every company should have a valid written policy against sexual harassment is to institute liability on the individual offenders of sexual harassment. This is because failure to have a policy holds the employer vicariously liable (Alibekova and Campbell, 2007). Case Analysis: I have chosen case [insert which of the 4 cases you picked) to discuss here. The facts: The plaintiff claimed sexual harassment by her supervisor subject to civil rights act. The parties however, presented conflicting testimonies that were not resolved and the case was dismissed by the district court (Law, n.d). The issue: The issue in the case was whether the district court erred in dismissing the case for lack of sexual harassment. The court of appeal applied title seven of the civil rights act to determine the case. The decision: The court of appeal held that there existed sexual harassment based on hostile working environment. It further held that the employer is liable for sexual harassment by an employee. I agree with the court’s decision of existence of sexual harassment due to existence of hostile environment but disagree with the decision to hold the employer absolutely liable for the supervisor’s act because the liability is not absolute, especially with a documented anti harassment policy. Appendix Sexual harassment policy: sections Definition of sexual harassment This part will inform the employees of sexual harassment acts. Acts that does not constitute sexual harassment This part intends to create a social environment by outlining social behaviors that are not offensive. Recommended actions after sexual harassment This section is intended to provide confidence for instituting claims by victims. Procedure for solving complaints The section is included provide confidence and to ensure effective implementation of the policy. References Alibekova, A. and Campbel, D. (2007). Employment law, Volume 28, Part 1. Netherlands: Kluwer Law International Business and legal reports. (2005). Sexual Harassment Essentials of Prevention and Response. Old Saybrook, CT: Business & Legal Reports Marshall, A. (2005). Confronting Sexual Harassment: the Law and Politics of Everyday Life. Burlington, VT: Ashgate Publishing Moffatt, J. (2007). Employment Law. New York, NY: Oxford University Press Law. (n.d.). Meritor Savings v. Vinson. Retrieved from: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0477_0057_ZS.html Sexual Harassment Research Paper Your course project for this term is to write a 4-6 page, double-spaced mini-research project on Sexual Harassment. Everything you need to know about the project resides on this tab. You must use at least 2 outside resources besides the textbook. Your paper must be written in APA format, include a title and reference page, and reference your sources both internally (parenthetically) and in the reference page. Your paper will answer the following questions, will include case research, and will include one appendix item. The paper is due at the end of Week 6.  Use internet research, the textbook, and the DeVry Online Library (and any other relevant sources) to research the information in this paper. Questions to answer in your paper: (Include each question in a heading of your paper - and in this order.) 1. Define sexual harassment as the term is used legally. 2. Explain how sexual harassment differs from gender discrimination. 3. Provide the legal definition of "quid pro quo" (also known as "vicarious liability") sexual harassment. Provide one example of a behavior which could be found to be quid pro quo sexual harassment. 4. Provide the legal definition of hostile environment sexual harassment. Provide one example of a behavior which could be found to be hostile environment sexual harassment. 5.  List the factors which contribute to a determination of whether behavior is sexual harassment. 6. Define the standard by which "unreasonable" behavior is determined. 7. Explain what situations are considered "severe or pervasive" and why these terms are important. 8. Give the main legal reason why every company should have a valid written policy against sexual harassment (besides the fact it is the "right" thing to do.) Pick ONE of the following four cases to discuss in your paper. In your discussion, state the following: A. The facts of the case (briefly!) B. The issue in the case (i.e. what was the court asked to review?) C. The decision of the court D. Whether you agree or disagree with the courts decision - and why. Cases to choose from are: I.  Faragher v City of Boca Raton 524 US 775 (1998) II.  Burlington Industries, Inc. v Ellerth  524 US 742 (1998) III.  Meritor Savings Bank v. Vinson  477 US 57 (1986) IV. Oncale v. Sundowner Offshore Services  523 US 75 (1998) If you click on any of the four cases, you will be taken to the Cornell University Law School's Supreme Court Reporter decision on the case. You can also do further research and find many good articles and sources which discuss the cases online (and in your textbook.)  Note that court cases are specifically not copyrighted; when you quote from them, you use legal citation styles to reference them. This section of your paper should be about 1 to 2 pages. Finally, create an appendix to your paper which outlines what a good Sexual Harassment policy would include, and why you would include each section. (You don't have to write a policy - and do not copy and paste a policy from the internet. Instead, list the sections your policy would include, and why you would include each section. You can be brief on this.) Grading Rubric Item Points Answers to questions (10 points each) 80 Case analysis 30 Policy outline 20 APA formatting (title page, references, double spaced, headers, spelling, editing, etc.) 20 Total points 150 Possible Deductions: Use of less than 2 outside resources (deduction per source - textbook doesn't count) -20   Read More