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LESSON_2u.docxLESSON 2: AFFIRMATIVE ACTION, HARASSMENT, AND DIVERSITY
OVERVIEW : Harassment is a serious problem in the workplace. Lawsuits against employers have been rising at an alarming rate since 1991. Adverse awards can cripple many firms. Consequently, this lesson is designed to provide students with a sufficient understanding of harassment principles so that they may detect, prevent, and investigate harassment problems in the workplace. This lesson also reviews the law as it applies to affirmative action and discrimination. This lesson will also cover the Pregnancy Act and its implications.
OBJECTIVES : After studying this lesson, the student should be able to:
1. Identify and prevent race, color, national origin, gender and sexual discrimination problems.
2. Know the definitions of harassment.
3. Identify and prevent harassment problems in the workplace.
4. Know the provisions of the Pregnancy Act.
5. Prevent pregnancy discrimination in the workplace.
READING ASSIGNMENT : Chapter 5, Chapter 6, Chapter 7, Chapter 8, Chapter 9, instructor explanatory notes, and the assigned supplemental readings.
INSTRUCTOR'S EXPLANATORY NOTES:
Harassment
Sexual harassment is a much-misunderstood subject. The popular press and media lead one to believe that illegal sexual harassment is any unwelcome conduct of a sexual nature. This is not true. Pay close attention to the sexual harassment definitions and their explanations provided below, because they are the keys to deciding sexual harassment charges (Note: in general harassment of any kind-race, religion, national origin, etc. is illegal and follows the same general rules as discussed below for sexual harassment):
· Types of Harassment as defined by the EEOC:
A. Quid Pro Quo: Unwelcome exchange of sexually related favors or where employment is contingent upon submission
For example, a supervisor requires a worker to "date" her in order to keep his job. As long as the worker can prove the facts (e.g., the supervisor's actions unwelcome and were actually made) then quid pro quo has occurred.
If the supervisor's actions are welcome no illegal sexual harassment has occurred. However, as discussed previously organizations can have company policies that go beyond the law. Consequently, firms can "outlaw" such actions, if they choose to.
· Once the definition of quid pro quo harassment is met and there is job determent the company is automatically liable. Job determent is defined as loss of job, a lower or no raise, change to more demanding assignment, not receiving a promotion, etc.
· Once the definition of quid pro quo harassment is met and there is no job determent, then the employer can avoid liability by showing that (1) it exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm (employer may not be aware)
B. Hostile environment: Unwelcome visual, verbal, or physical conduct of a sexual nature that affects an individual's performance or creates an abusive work environment.
Hostile environment cases are the most controversial and easiest in which to receive a charge.
Examples include: Visual - pictures (pin-ups-male or female, men or girl's
magazines, etc.) gestures, actions, etc.
Verbal- sexual jokes, slurs, gender baiting, innuendoes,
phrases with double meaning, rating opposite sex's sexual
attractiveness, etc.
Physical touching, kissing, impeding movement, staring,
assault, massaging the neck of the opposite sexual, etc.
It is important to note that all of the above may or may not be sexual harassment depending upon the situation, the facts, and the definition of sexual harassment.
Sexual Harassment cases are disparate treatment cases under the burdens of proof of the Civil Rights Act.
Hostile environment cases are proven through a two-fold process based on the definition above.
(1) Victim must prove the conduct was unwelcome; this need not be verbal. Body cues are sufficient such as grimacing, moving away, leaving, body tensing, etc.
Unwelcomeness must not be ambiguous such as saying yes for a date and then saying no.
Victims' actions, dress, or speech can be used to determine welcomeness; for example a man complains about ladies telling dirty jokes, however he was telling them first to the ladies. Asking the boss out and then when he or she does go out with them or makes a pass, filing a sexual harassment charge is usually ruled as welcome conduct.
See if you decide which of the following cases indicate welcomeness or unwelcomeness:
1. Female secretary kept receiving friendly notes from her supervisor; he usually escorted her to the bathroom and to her car. He often made visits to her home and to her when she was in the hospital. She welcomed none of these actions. She told some of her friends that she found his behavior unwelcome and tried to avoid him on few occasions.
2. A male clerk sits with a group of female employees during lunch and every time they start to tell dirty "male" jokes he quietly gets up and leaves.
3. Female accountant filed a sexual harassment charge after her supervisor had placed his arm around her in a bar and stated that if she was really interested in becoming a co-manager, "there is a motel across the street." However, during the investigation she admitted to inviting the supervisor to the bar to discuss opportunities for promotion.
Answer: Case 1: welcomeness-her conduct was not clear and unambiguous nor was it
consistent
Case 2: unwelcomeness-nonverbal but clear and unambiguous
Case 3: welcomeness-the bar was a known pick-up bar; promotional opportunities are
Appropriately discussed at the office.
And
(2) the second legal test, once unwelcomeness has been established then either the victim's performance must be adversely affected or the conditions of the work environment have changed such that an abusive or hostile work environment exists.
With regard to performance it must be objectively demonstrated that the person's performance has deteriorated.
An abusive work environment generally exists when the victim is very embarrassed to be around the harasser, feels humiliated, constantly avoids the harasser, is scared, even seeing a doctor as a result, etc.
However, the Supreme Court has stated in Meritor Savings (in your book) that "no one is guaranteed a pristine work environment. Just because someone hears a racial slur or
sexual joke does mean they have a cause of action under Title VII…. but when a person's environment changes to one that is abusive employees are protected." The Supreme
Court has also made it very clear that a sexual harassment case must be evaluated on a case-by case basis considering the entire work context. For example, the Supreme Court stated when a player comes off the football field and is patted on the rear there can be no case for harassment since that is normal for that situation.
While there are no definitive guidelines for determining abusive work environments, some basic principles have been established:
The less serious the offense such as a joke would generally have to be repetitive to create an abusive work environment. The more serious the offense the less repetitive it needs to be. For example, a pat on the rear would only need to happen once.
It would also depend on the nature of the joke or touch. There could be some jokes so
explicit that it would only take once to create an abusive work environment and putting an arm around someone's shoulder would generally need to be more repetitive.
Timing is important as well. Did the harasser call the victim four times in one day or
four times in four years?
Who did it is important as well. If the supervisor is the perpetrator then it can be less
repetitive and still create an abusive work environment.
See if you can decide which of the following cases creates and abusive work environment:
1. Female employee hears a dirty joke on two occasions over a 33-month period and files a sexual harassment charge.
2. Female worker was approached by a male co-worker, who placed his arm around her and asked her for a date. She moved away and declined his offer.
3. Female employee goes on trip to a professional convention with her boss. While on the plane he asks her out to dinner and she refuses. At dinner that night they by chance end up sitting next to one another. He repeatedly asks her out during dinner. He later asks to go with her to her room. She refuses all of his requests. He follows her to her room later (they both have been drinking). He tries to enter her room but she does not let him. As he leaves he jokingly says well there goes your next raise. All of these actions occur after working hours.
4. First day on the job a lady secretary was asked by her boss if she "fooled around." Later that day her supervisor requested that she raise her long dress up to her knees so that he could take a picture. She refused but later allowed another co-worker to take the picture.
5. Women were requested to wear skirts and dresses because a visiting supervisor "liked to look at legs" and a couple of sexually oriented slides were shown at a company presentation that day.
6. The Male supervisor came into the new female accountant's office on several occasions locked the door, and just stared at her without speaking.
7.After being continually referred to as "girl" by the new senior accountant, the hospital clerical support staff filed a sexual harassment charge against him.
Answer: Case 1: Not enough to create an abusive work environment.
Case 2: Need to know if he kept doing the offending behavior; if he did, at some
point it would create an abusive environment.
Case 3: Does not matter if off the job as long as it affects the person back on the
job. She was very embarrassed and scared to be around him back on the job
also a quid pro quo case due to the raise comments.
Case 4: Since supervisor sets the work climate this was enough to create a hostile
environment.
Case 5: Even though there had been no other problems since supervisors were
involved this deemed sufficient to create an abusive work environment.
Case 6: This creates an abusive work environment. The lady was very fearful of her
supervisor and avoided him constantly.
Case 7: This may or may not create an abusive work environment. Cases have gone
both ways. The key to these cases is the manner in which it is done. If the
women are called "girls" in a deeming fashion, then after enough repetitiveness it will be illegal sexual harassment, because at a minimum over time it will tend to humiliate, embarrass, and cause the ladies to avoid the accountant (all elements of hostile environment). If it is not done in a demeaning manner, then it is not illegal sexual harassment.
Consensual relationships are generally ruled as welcome and not harassment. However, when one party tells the other that the relationship is over, any subsequent actions constitute sexual harassment.
Employers are also responsible for the actions of non-employees such as contractors and customers as it relates to conduct in the employer's workplace.
Same sex harassment is now generally illegal as well so long as the action was because of the person's sex (must still follow the disparate burden of proof).
One complicating factor in sexual harassment cases is third party claims. In these cases two or more persons are engaging in consensual sexual conduct and another person(s) observe this behavior and is offended by it. Unless management responds to their compliant they may file a lawsuit and win if it meets the legal definition discussed above.
Retaliation against the complainer is illegal. However, if the employer (anyone with supervisory authority or anyone who can adversely affect a person's employment; does not have to have a supervisory title) takes some disciplinary action against the employee after a sexual harassment case is filed, the employer can avoid liability if it can objectively show that the discipline was due to performance of the employee unrelated to the sexual harassment.
If a victim complains to an unrelated manager who is not part of the grievance process and that manager does not forward the complaint or help the person file the complaint, the company is usually liable.
If safety is threatened, the employer must remove the victim from the situation immediately.
If a victim insists on secrecy and does not allow an official to investigate or inform higher authorities then that official must keep the confidence and cannot be sued unless the victim could be physically or psychologically harmed, or if other employees in the department are similarly affected.
Other actions that can often cause a company to lose a sexual harassment claim:
· asking the victim to go home and think about whether or not he/she really wants to file a sexual harassment compliant.
· Telling subordinates not to go to HR (human resources) to complain about anything or harassment specifically.
· failing to monitor and take action for illicit e-mails that are sexual, racial , etc. in nature among workers.
In order to prevent sexual harassment problems and subsequent liability employers should do the following:
A. Conduct periodic training-(at least one hour person per year) this should be introduced by the executive in charge
B. Develop, post, and explain a sexual harassment policy that includes the following:
Statement of commitment
Statement that sexual harassment is illegal
Provide examples of inappropriate conduct; include simple sexist remarks can
constitute harassment; not to also state that harassment base on sex, religion,
national origin, etc. is also illegal and not tolerated
Statement to encourage questions about what is or not covered
Express strong disapproval
Statement outlining who is covered
Statement about off-hours reporting (must be able to report to someone
In authority easily and immediately no matter the time of day)
Encourage employees to report sexual harassment of others
Describe compliant procedure (must be able to report complaint to someone other than Supervisor; preferably two people-often one person is a perceived friend of the harasser)
Describe appropriate behavior
Confidentiality statement
Protection of the victim from retaliation
Penalties and remedies written into the policy
Investigation process
Statement about consensual relationships
Statement about committing a fraudulent claims (this should not be put in the
harassment policy itself because it could deter someone from filing a claim, but
rather it should be place in the employee handbook and be a general policy
about committing fraud in the firm)
C. Investigate, document and take action for valid claims. Disciplinary action
should match the offense. Should have victim interviewed by someone of
same sex or at least have same sex person included in interview process.
D. Offer the victim psychological counseling (usually thorough the organization's ongoing Employee Assistance Program (EAP)
E. In some situations it is also appropriate to send the offender to sensitivity training as
part of the disciplinary process.
Remember companies may go beyond the law and prohibit all forms of possible sexual harassment. They may even prohibit dating among employees. Employees can be disciplined for non-compliance as long as it is done in a non-discriminatory fashion.
Pregnancy Act
Pregnancy Act of 1978 is actually an amendment to Title VII and makes pregnancy an additional protected class. It has the additional coverages:
· Elective abortions may be excluded from health insurance plans but not from other benefits, such as sick leave. Medical problems resulting from abortions may not be excluded from medical insurance.
· Employers must provide medical benefits to husbands of female employees if they provide benefits to the wives of male employees.
· Employers must provide leave of absence or sick leave for childbirth on the same basis as for any other medical disability.
· Employers must allow women to work until their pregnancy results in physical disability that (1) interferes with their job performance and (2) the same level of disability that would cause workers with other medical problems to have stop working.
· Employers must allow women to return to work after childbirth on the same basis as for other disabilities.
ASSIGNMENT :
(1) Post an original, detailed research paper following the guidelines provided in the announcements of the case presented on the Lesson 2 discussion forum and post insightful responses to two (2) other students’ initial postings.
SUPPLEMENTAL READING :
Risser, Rita (1999) Sexual harassment training: truth and consequences. Training and Development, August, 53(8), 21-23.
Sara, B. K., Coley, T., Ford, M., & Moore, E. (2006). Coffee, tea, or me? romance and sexual harassment in the workplace. Southern Business Review, 31(2), 35-49. Retrieved from http://search.proquest.com/docview/228232152?accountid=38769.
