Assignment 1: LASA 2: Inappropriate Behavior

The employment Law

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College Affiliation

Introduction

Employment law is a group of laws that are formulated to govern the rights and duties between employers and employees, in most cases, the employment law is also referred to as the labor law. The rules and regulations that regard the labor laws are designed to help workers stay safe at their work stations and also to ensure that these employees are treated fairly by employers and fellow employees. For the sake of justice, it is important to note that there are also some laws that protect employers’ interests as well. Labor laws are made based on the federal and state constitutions, the legislation, administrative rules as well as court options. Apart from just safeguarding the interests of people at work, employment laws also govern employee contracts.

The labor laws originated due to the outcry from the public against what they termed as oppressive practices of the industrial revolution where people were discriminated upon because of their age and sex, after the outcry, the first set of laws were drafted and passed, initially the law dealt with issues of compensation where workers were injured and also issues to do with minimum wage. As things advanced, more laws were made to govern other issues like standard working week, child labor, discrimination and unsafe work conditions. In the recent years, discrimination in the workplace has become a basis for many employment related cases, based on the Civil rights act of 1964 and other subsequent legislation; it is illegal for any employer to treat workers differently based on their ethnicity, religious beliefs, gender or disability. In the United States of America, the law in nearly all states presumes that employment relationships are at will, the interpretation of this is that employers and employees are allowed to terminate the relationship at any time that they feel like. The presumption is usually overcome by the parties showing that the they(parties) entered into a contract which made them made promises regarding the relationship.

The fact that the presumption exists does not mean that there are no exceptions, the exception arise from the public policy for example in some cases employers are not allowed to fire employees for discriminatory reasons. Where contracts exist, the contract describes the conditions of the employment in terms of length, compensation, discipline and reasons for termination. What this means is that so long as the contract is legal it has to be enforced and this helps workers from being taken advantage of (Peter 2011) . In course of employment, a number of other work related issues may come up and that is the reason as why many labor law practitioners are now specializing in areas like sexual harassment and other specific areas that related to employment.

Civil Laws for employees to each other

Employees are not just exposed to problems that come from their employers, but sometimes employees can be a source of problems amongst themselves and that is why there are some employment laws that moderate the behavior of employees towards others, for example the most common issues that relate to this is the harassment of employees by those who are senior or have some privileges in the Company. According to the law, harassment is a form of employment discrimination regardless of who perpetuates it (Francis 2011). The law states that any form of harassment violets the title VII of the civil rights act 1964. Harassment is defined as unwelcome conduct that is based on race, color or sex or any other issue that related to discrimination. The aspect of harassment becomes unlawful where it results in an environment that is hostile, intimidating or abusive. The anti harassment law prohibits harassment against individuals against their will or making people feel violated or both.

According to the laws that relate to harassment, the offensive acts that can be classified as harassment include offensive jokes, Slurs, Epithets or name calling. Others are physical assaults or inappropriate touching. Harassment is not just limited to one circumstance; rather it can happen in any of the following; One, where the person harassing can be a supervisor, agent,co worker or even a non employee, two, sometimes the victim may not be person harassed but rather a person who witnesses the harassment and lastly unlawful harassment can happen even between members of the public.

In cases where harassment by a supervisor leads to a negative employment action, then the employer is directly held responsible. Where the supervisor’s harassment results in poor working environment, the employer will still be liable unless he proves that; He tried to stop and prevent the actions of the supervisor or he promptly corrected the situation, the employee was unreasonable enough to take advantage of the available preventive measures. The employer is also liable for the harassment that is directed at non employees to whom he has control like contractors and customers, this case also applies where the employer should has known about the harassment and failed to take corrective actions. In the case of Marwan, the law prohibits him from behaving with his fellow employees in a certain way, for example he is not allowed to behave in a way that would be interpreted as harassment.

Being a senior employee at the company, he should not have harassed the new employer because what he did was a violation of the law in the sense that his actions created a hostile environment for that particular worker until she had to complain. As for the customers, the law also bars Marwan from touching them in the way that he did because that amounts to harassment. Touching customers’ inappropriately amounted to harassment only that he was lucky that none of the customers complained, the way he touched the customers was a form of personal violation and the customers would have been right to complain to management so that the situation could be rectified. The law is not selective when it comes to harassing, remember we said that regardless of who does the actions, the law is meant to protect all people that fall within the jurisdiction of the Company, the customers belonged to the company and therefore it is the responsibility of the company to make sure that its customers are not subjected to harassment by an employee. In this case, we can say that the civil rights laws apply to all people. For the sake of other employees of studio five, Marwan should have avoided being touchy with the new employees even if she had a history of being okay with it.

Sexual harassment

Before we decide whether there was sexual harassment at studio five by Marwan, we need to understand what entails sexual harassment. Sexual harassment is defined an unwelcome sexual advances or request for sexual favors and other verbal or physical conduct of sexual nature. Such becomes sexual in nature when the submission of such conduct is made explicitly or implicitly a term or condition or submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting the individual,or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating hostile working environment . Sexual harassment law is part of the larger employment discrimination law and in some incidences; it may lead to personal injury law suit. We can generally say that sexual harrament is unwanted and unsolicited physical advances and conduct of sexual nature like rubbing, touching and groping.

Based on this we can say that Marwan actually committed sexual harassment, even though the law does not prohibit simple teasing, serious comments and gross actions cannot be tolerated, some people may use the fact that teasing is allowed and use it as an excuse, however, it is good to note that an action can only be considered to be teasing if it happens as an isolated incident, when such incidences become frequent to the extent of creating a hostile environment , then it becomes illegal hence being considered as sexual harassment. The type of sexual harassment that Marwan committed is known as Quid Pro Quo , it typically happens when an individual in a position of power demands sexual favors or acts in return for an action such as promotion or promising not to terminate the employment of the victim. If we go back to the case, we realize that Marwan requested for a date with new actress and then threatened her that if she fails to honor the date, then he could have her fired.

According to the equal employment opportunities commission, which is a federal agency that is responsible for establishing and administering guidelines and regulations addressing sexual harassment by way of title VII of the civil rights act, With the help of EEOC, victims of sexual harassment may seek remedies such as reinstatement in cases where there has been a termination, in situations where there was not termination; the offender may be asked to cease the unwanted behavior or even made to be answerable to the company policy against such. If the company has an established sexual harassment policy, the victim should follow the procedure that is set up to make sure that justice is done, for the case of Marwan, he was relieved off his duties as a form punishment, however, we have not been told whether the procedure was followed and also we are not aware of a policy of sexual harassment, perhaps the reason why Marwan had to sue.

The legal status of employment

For the successful implementation and administration of employment laws, it is important that the workers are classified into their various statuses according to whether they are working on contract or independent workers (Mannington 2009). The arrangement and nature of employment defines what measures should be taken should an employee be mistreated by an employer. There has been a lot of perception that existing classification of employment does not effectively deal with the non standardized forms of employment , what this means is that those forms of employment that depart from the permanent model or intermediate employment constructed around a full time,continuos working week. The above approach is known and believed to exclude workers whose status is unclear from the protection of employment legislation

There are employees who are not on contract and who are also not considered permanent, non the less, they contract themselves to providing their services to the company and they are dependent on such companies, it is for this reason that people who deal with labor laws suggest that such people are called workers instead of employees because the term employee is limiting and it makes them to be factored in when it comes to being protected by law. The wider term ‘worker’ is meant to include the employees without contract to the legal protection systems. Form the explanation in the case we are told that Marwan is not a contract employee, though he loves his job and he enjoys some form of seniority, based on these we can say that Marwan can be considered as a worker according to the available classification of employment status. The fact that he lacks an employment contract and that his status is not clear does not mean that he cannot enjoy the protection of law in the event that his employer mistreats him.

Since Marwan has been a good worker and his presence has been able to bring in customers, I think the best action that should be taken against Marwan is that studio five should just give him a suspension and a strong warning. The reason why I suggest this is because, legally, it is the first time that a complain has been received him and even though customers had experienced some discomfort due to his actions, no formal complain had been filed. The Company should also consider that given his physical inability, it may be hard for him to get another job and since the bad leg was actually part of why he was a good performer, he deserves a second chance.

Employment discrimination

Since employment discrimination is such a wider area, it is hard to bring an employment discrimination claim against a company. According to employment discrimination law, employers are prohibited from treating workers differently due to among other things ,physical disability or race or even gender, this is because such attributes are never related to how a person performs their jobs. If there was a genuine case against studio five by Marwan, then it would be discrimination due to disability.

Marwan’s allegation that he is being discriminated against may have some ground because we are not told the procedure that was followed before he was dismissed, we are also told that he did not have a contract despite the fact that he was considered a senior worker at studio five. There may be chances that one of the reasons why he did not have a contract is because of his leg, however these are just theories. Legally, studio five can argue that his dismissal had nothing to do with his physical disability because he had worked with them without any problem until the new actor complained, and they only acted according to the complain when they laid him off.

Before the new actor complained about him, there is nowhere, where we are told that the company had complained or summoned him, we are told that his bad leg was not even noticed and the employer never made a reference to it. My take is that the company has evidence that it c never complained about Marwan’s inability to perform because of his leg, and that he had worked with them for many years until the sexual harassment issue came up. The Company may argue that if the issue had not come up, his job would still be available to him. On the side of Marwan, I do not think he has any evidence to show that he had been discriminated, because even studio five allowed him to take pictures with their customers, which means that they valued his contribution to the company.

Liability of the company to the female employee

Like it is mentioned before, the company is liable to an employee in case of sexual harassment because it is the duty of the company to protect the employee so long as the employee can prove that the employer was aware of the ongoings. According to the sexual and any other harassment related law, employers are fully liable for any harassment of their employee in cases where it is obvious that the company failed to prevent harassment or when there is prove that the company did not a defined policy to deal with sexual harassment . In the case of studio five, we are not told anywhere that there is a sexual harassment policy and also there is no defined procedure that details what employees should do to avoid harassment. Based on this, the new female employee can sue the company for lack of clear policies on sexual harassment.

When a person feels that they have been sexually harassed, they need to go through the available channels in their work place to see if the situation can be solved, if the situation becomes hard for the company, the victim can then fill in the EEOC claim and this must be done within 180 days (Gillian 2006). While it is true that the employee may have a reason to sue studio five for not having clear policies, the technicalities required are that she goes through the EEOC and here she has to confirm that after reporting the incidence to the company, no action was taken.

Studio five has a strong defense in the sense that they can argue that lacking a clear policy does not mean that they failed to take action, actually the company can argue that after they received the complain, they took immediate action and dismissed Marwan. It can say that it was not aware of the harassment and that is why it took action when the matter came to its attention. In the event that both parties fail to provide evidence, then the EEOC will be given the mandate to carry out the investigation, from the information that we have, studio five will be exonerated for not being aware of what was happening.

Roles of the Union

Collective bargaining is process of negotiating the terms for employment between a union and employers, the interests of the workers are usually represented by the union , that is the union acts on behave of the employee (Mary 2003) . Trade unions are known to fight for the rights of workers especially where the conditions and remuneration are concerned. For the case of Marwan, I do not think that being a member of a union will change anything because he was not unfairly treated at his place of work. The reason for his dismissal was justified because he harassed a fellow employee, I am sure that if investigations were to be carried out, it would be discovered that he mishandled even the customers, so involving the union would not change anything.

The fact that no other employee has complained means that this particular employee had problems and therefore the union may not even be involved because studio five has not mistreated a group of employees. Another reason as to why the union may not be able to do much is that there is no clear complain that Marwan has taken to it for solving, he does not have prove that the company has discriminated against him and he can also not complain that he was denied a contract because it is not mentioned anywhere that he ever asked for one.

Polices to avoid harassment at work

In most countries and even the United States of America, employers are responsible for making sure that there is no harassment in their companies. The most successful preventive strategies are those that involve all those people who are concerned and also coming up with a clear statement of intent. The work of the statement of intent is meant to reflect a real commitment from parties that they will recognize the importance of fighting harassment. Anti harassment policies explain in clear terms what entails harassment and the penalty that can be given in case of an employee breaking the policy. It also spells out the procedure or the action that one should take in case they feel that they have been harassed.

The mechanisms and policies should put in place detailed actions for both victims and perpetrators. The employees should be made aware of the policies and its enforcement and also there should be an investigative mechanism to confirm an alleged harassment so that innocent people are not victimized. The employee should be able to understand, observe and examine the anti harassment policies to promote harmony and prevent victimization.

References

Mary, M. (2003). Human resource and labor laws. Oxford University Press

Gillian, K. (2006). How to prevent yourself from harassment at work. Macmillan: London

Mannington, N. (2009). The law and employment. Chicago: Chicago Press

Francis, L. (2011). Introduction to company law. New York: NYP

Peter, H. (2011). The labor law notebook. London: Macmillan