Wednesday, April 11, 2012

sexual harassment

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Sexual Harassment happens in society and your work place everyday. Sexual Harassment is a form of sexual discrimination that violates the title VII of the Civil Rights Act of 164. Sexual Harassment happens to men and women of all different ages, race and national origin. Sexual Harassment is defined as any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature. In a workplace if a person is provoked by a coworker or any person threatening to them or provoking them in a sexual nature. (Nancy Wyatt). There are many different acts that fall into the category of sexual harassment. It may be someone pushing a little to far that may just be attracted to you, or someone that wants to gain something from you. This also includes a superior trying to levy your position for sexual favors or sexual advances. The specifics of sexual harassment may include the following The victim as well as the harasser may be man or woman. The victim does not have to be of the opposite sex. The harasser can be the victims supervisor, an agent of the employer, a supervisor in another area, a coworker or a non-employee. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.


Sexual Harassment is legal term that was created for the purpose of ending sexual harassment and discrimination against men and women in our society and a workplace environment. The legal aspect of sexual harassment is constantly being redefined in the legislature and the court system. Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harassers conduct must be unwelcome.


There are two types of legally recognized types of sexual harassment that the courts agree with.


· There is the quid pro quo sexual harassment.


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· The hostile environment sexual harassment.


The quid pro quo occurs when a targeted individual submits to sexual requests by a person of higher level of employment, or rejection of sexual advances or the conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual submission to such conduct is made a term of condition of employment. The following also applies to quid pro quo it is sufficient to show a threat of economic loss to prove quid pro quo sexual harassment. A single sexual advancement may constitute harassment if it linked to the granting or denial of employment benefits. Courts have held employers strictly liable for quid pro quo sexual harassment initiated by supervisory employees. A subordinate who submits and then changes his or her mind and refuses can still bring quid pro quo sexual harassment charges.


Hostile environment sexual harassment occurs when an unwelcome sexual conduct interferes with an individuals job performance or creates a hostile, intimidating or offensive work environment. This stands true even though the harassment may not result in tangible or economic job consequences, for example the person loosing pay or a promotion. There are two conditions that will determine the liability for employers in cases of hostile environment of sexual harassment


· The employer knew or should have known about the harassment.


· The employer failed to take appropriate corrective action.


Although there are strict liabilities to these actions an employer can be held liable for the creation of hostile environments by a supervisor and non-supervisory personnel as well. The acts of the employers customers or contractors if the employer has knowledge of the acts and fails to correct them also assert liability. An employer is expected to recognize hostile environments through complaints made to management, even if management failed to establish a policy against sexual harassment, or if the harassment is openly practiced or well-known among employees.


Although it is believed that sexual harassment is rare and doesnt happen often it doest exist more frequently than believed. An example of a case is the Meritor Savings Bank V. Vision. This case brought new meaning to sexual harassment in the workplace and set a precedent to all lower courts involving sexual harassment. In this case the legal issue facing the Supreme Court was whether a claim of hostile work environment sexual harassment is a form of discrimination under the Title VII of the Civil Rights Act. The case went as follows


A woman started her career as a bank teller trainee. She was later promoted to teller, then to head teller and finally to assistant manager. She consented to a sexual relationship with her supervisor after he repeatedly sexually harassed her during a four-year period. During her probationary period, he did not make any sexual advances. After her first promotion, under his supervision, the harassment began. The promotions were based on merit alone. She had proved to be a stellar employee in the four years that she was employed at the bank. The relationship started immediately after her first promotion, he invited her out to dinner then asked her to go to a motel to have sex with him. During this time, he fondled her in front of other employees, followed her to the ladies room, exposed himself to her and forcible raped her on several occasions. She never reported the harassment because she was afraid of him. The case set a precedent in the court systems. The Courts felt that although an employees apparent consent to sexual activity does not necessarily mean a claim of sexual harassment. The employee admitted to a sexual relationship cannot be considered truly voluntary if the harasser has the power to fire, demote, or blackball, deny raises, bonuses or promote an employee. The Courts ruling firmly established the working definition of sexual harassment and the kinds of workplace conduct that may be accountable under Title VII.


In disparate treatment Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employers actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence. (HR guide on the Internet). A plaintiff may also proceed under the direct method offering any of the following types of circumstantial evidence


· Suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group.


· Evidence that other, similarly situated employees not in the protected class received systematically better treatment. Marshall vs. American Hospital Assoc. 157F. d.50 (7th Cir. 18).


· Evidence that the plaintiff was qualified for the job, a person of the protected class got the job, and the employers stated reason for the decision is unworthy of belief.


· The McDonald Douglas method.


The McDonald Douglas burden-shifting formula which was first articulated in McDonald Douglas Corp. vs. Green 411 U.S. 7 (17), and later refined in Texas Department of Community Affairs vs. Burdine, 450 U.S. 48 (181). The examination is as follows (1) the plaintiff must establish a prima facie case discrimination; () the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions, () in order to prevail, the plaintiff must prove that the employers stated reason is a pretext to hide discrimination.


In disparate impact even when the employer is not motivated by discriminatory intent, Title VII prohibits the employer from using facially neutral employment practice that has unjustified adverse impact on members of the protected class. The Supreme Court first described the disparate impact theory in 171, in Griggs vs. Duke Power Co., 401 U.S. 44,41- (171) Title VII proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as built-in headwinds for minority groups and are unrelated to measuring job capability.


Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains. (Facts about sexual harassment-EEOC). Sexual harassment is taken very seriously in todays workpace environments and is a protected class that allows the courts to rule strictly against the predator.


Today, the time is right for businesses to begin to manage their risk in this area more wisely. Preventing sexual harassment in the workplace requires a considerable investment of time and personnel. In the end, however, significant savings in legal fees and health-care costs will offset these expenses. Companies will also benefit from increased worker productivity. From a purely business perspective, a company only stands to gain if it takes a no-nonsense, hard-line position on sexual harassment. Not only is it the right thing to do, it is the smart thing to do.





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