Sexual Harassment in the Working Place - Research Paper Example

 Sexual Harassment Paper HRM320: Employment Law Prof. [name] DeVry University Online Your Name Sexual Harassment Introduction According to the case law associated with sexual harassment, various acts can be realized as sexual harassment. According to Title VII, an act may be categorized as sexually harassing due to vulgar remarks, behavior that is sexual in nature and talking about an individual’s gender in a biased manner (Buckley, 2008, p.4-28). According to Michigan, sexually harassing behavior refers to actions that are kind of sexual and harassing an employee physically (Buckley, 2008, p.4-29). Several factors have to be taken into account by the court of law to differentiate between a sexually harassing behavior and non-sexually harassing act. Body Legal definition According to Equal Rights Advocates, sexual harassment is legally defined as physical or vocal behavior that is sexual in nature, and the level of this behavior is either severe or pervasive, leads to negative conditions within the workplace and is unwelcomed and unasked for by the victim (ERA, 2012). This means that if activities listed in the legal definition of sexual harassment takes place and are accepted and asked for by the supposedly victim of sexual harassment, then these behaviors may not be recognized as sexually harassing. Sexual Harassment vs. Gender Discrimination According to the Employment Equity Act, an employer is not allowed to act in a discriminatory manner while creating rules and regulations and while defining practices on the basis of gender and sex (Müller, 2009, p.9). This means that gender discrimination takes place when employers conduct discrimination on the basis of whether an individual is a male or female. While on the other hand, sexual harassment takes place when an employer; regardless of the gender he belongs to conducts an act that can be denoted as sexual. Liability In case of sexual harassment, the most common for of sexual harassment is said to be Quid pro quo harassment (Buckley, 2008, p.4-24). This kind of harassment takes place when an employer asks for favors that are sexual in nature in exchange of benefits on the job such as higher payment and promotion. In order to recognize an act as Quid pro quo, the employee who has been asked for the sexual favor declines the sexual favor and the employer terminates the employee or rejects him the approval of one of the benefits that were previously offered. Hostile Environment Sexual Harassment According to employment law, Hostile Environment Sexual Harassment takes place when workers in an organization are victimized by unasked for sexual behaviors conducted by employees other than the direct supervisors and the managers of the victims and the direct supervisors and managers do not take any measures against such actions (Buckley, 2008, p.4-18). For example: pornographic pictures pasted on the cubicle of a female worker by a male worker, the female worker reports the activity to the management and the management does nothing to control this activity. Factors There are many situations that may be recognized as sexually harassing even though these scenarios may not even fall in the category of sexual harassment. The factors that are considered while deciding upon whether a case is of sexual harassment or not includes: availability of vocal and physical activity that is sexual in nature, the occurrence of that particular activity, the hostility of the act, the act conductor was an individual working within the organization or was not a member of the organization, indulgence of other individuals in the activity, occurrence of same behavior against other individuals, the act was not asked for and the act led to changes in the way employee was performing (Müller, 2009, p.10). Unreasonable Behavior In the case of sexual harassment, it has to be identified whether the act was unreasonable in nature, to identify whether the act was unreasonable in nature; the theory of a reasonable person is to be applied (Müller, 2009, p.6). This means that a case of sexual harassment takes place when the person whose activity is being considered as sexually harassing would have estimated that the person who has been victimized would have felt that the act was humiliating and offending in nature. An act may be considered as unreasonable on the basis of the context in which the act was conducted, the relationship between the conductor and the victim of the act and the individuals who launched complain. For example: a joke may be considered as friendly gesture among friends sitting at a bar table, but the same joke may be considered as sexually harassing if conducted in work environment among colleagues. Severe and Pervasive An act is recognized as sexually harassing if the act is either severe or pervasive in nature or the act is both severe and pervasive. An act is recognized as severe or pervasive in sexual harassment case if the act makes the working environment difficult for the victim (Buckley, 2008, p.4-21). The act should not only create a difficult working environment for the victim, a reasonable person should even view the act to cause disturbances in the working environment. Acts that is recognized as severe under sexual harassment includes physical as well as emotional assaults such as threats and unwanted touching. An act is recognized as pervasive under sexual harassment if the occurrence rate of the act is high. Employers are advised and persuaded by the EEOC to adopt and create a sexual harassment policy to prevent cases of sexual harassment from occurring (Buckley, 2008, p.4-21). Importance of Policy Cases of sexual harassment can not be completely wiped off, but organizations can take measures to prevent such acts from taking place. One way through which organizations can counter sexual harassment is by creating a policy that is completely supported and backed by the top level management. Having a policy does not only provide the benefit of best practices, it even aids during situations that can impact the company legally. There are rules and regulations created on the federal level that require an employee to create such policies, and according to case law, if employers fail to put such policies in action, they will not be able to prove that they had exercised reasonable care in order to prevent and avoid sexual harassment (Buckley, 2008, p.4-22). Case Analysis: Faragher v City of Boca Raton Factual details In the case of Faragher v City of Boca Raton, the victim claimed that she was working in an environment that was sexually harassing in nature (Buckley, 2008, p.4-48). The victim further stated that the acts denoted as sexually harassing in their case violated the Title VII of the 1964’s Civil rights Act (Buckley, 2008, p.4-48). The ruling provided by the district court stated that the supervisors of the victims had created a difficult working environment. The court further stated that the supervisor was operating against his employment policy, thus the city was not to be held liable. Issue The issue that is being trialed and tested is whether the employer should be held responsible if his/her subordinates are operating in a sexually harassing manner and are creating a difficult and unhealthy working environment. Decision Out of nine votes, seven votes were casted in the favor of the victim and two votes were casted against them. Judge David H. Souter was the judge of the trial of this case and decided that an employer is responsible for the misconduct of his/her employees in accordance to the Title VII of 1964’s Civil rights Act (Buckley, 2008, p.4-48). Opinion The result of holding the employer responsible for the misconduct of his subordinates is correct because if employers take proper measures then they can easily avoid these situations from occurring. If the employers would have kept a check on his/her employees and would have informed them about the policy of sexual harassment, very few employees would have tried to conduct such activities. Appendix Sexual Harassment Policy 1. Stating the Prohibition of Harassment In this section, the policy should give an overview of what is sexual harassment and how the company plans to deal with it. 2. Definition In this section the policy states what is meant by sexual harassment and its components and factors. 3. Coverage This section states who are subjected to this policy and who are excluded, effective policies are those that cover all employees. 4. Procedure for Making a Complaint This section provides insight on how a victim makes a complaint to the policy makers. This section should also address the confidentiality issue of the victim and the harasser. 5. Procedure of Investigation This part of the policy states the measures that will be taken to investigate the case. 6. Sanction This part of the policy should talk about the punishments that will be levied on the harasser. 7. Procedure for Further Appeal This section talks about the way through which the victim can appeal if he/she finds that the sanctions are not enough. 8. Protecting Victim and Defendant This part of the policy should state that employees will not be allowed to harm those who have issued the complaint. References Buckley, John F. (2008). Equal Employment Opportunity Compliance Guide, 2008. Aspen Pub. ERA: Sexual Harassment at Work. (n.d.). ERA: Welcome. Retrieved September 8, 2012, from http://www.equalrights.org/publications/kyr/shwork.asp Müller, S. (2009). Sexual Harrassment in the Working Place. München: GRIN Verlag GmbH. Read More