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Journal of Academic and Business Ethics Sex, harassment and the workplace Cliff Fisher Purdue university Abstract Last year, high profile individuals, such as presidential candidate Herman Cain, former MIFF chief Dominique Strauss Kahn, and Weeklies founder Julian Ganges, Strauss-Kahn, made major media coverage, because of alleged issues relating to SEX.
Now that I have your attention, this paper targets sexual harassment, therefore we will not be dealing with notion, Strauss-Khan’s alleged sexual abuse charge, nor Julian Gangue’s sexual assault charges. Khan’s The focus Is on sexual harassment, not to commit violations of Title VII of the CIVIC Call Rights Act of 1964 and Its amendments, but to help educate employers, In order to prevent these costly legal actions and payment of damages, or If they cannot be prevented, then to reduce the exposure Involving actions that might not have been preventable.
The Civil Rights Act and its amendments do not require a general civility code on employers, nor does it require a utopian work environment, but it does require that employees not be sexually harassed, with one exception. Dealing with the “based on ewe element requiring that the harassment that occurred because of the complainant’s ex” gender, and did not occur to members of the opposite sex. Steiner V. Showboat Operating Co. , and Harris v.
Forklift Systems Inc. Both deal with this issue. This Issue is evident In Harris, when the president of Forklift Systems Is found to have made comments to female employees, often In front of others, regarding their appearance and their Intelligence; In one Instance, he called an employee a “dumb ass woman,” and in another situation, he suggest that a female employee and he “go to the Holiday Inn to other goatee your raise. The president also asked only female employees to retrieve coins from his front pants pocket, and threw objects on the ground in front of the women and asked them to pick them up. He made no such requests of male employees. This paper also deals with quid pro quo tangible employment action issues and a hostile work environment, which includes constructive discharge.
The theory of vicarious liability under agency relation legal standard will indicate why and how TTY agency-relation employers can be liable for actions of their employees, In addition, the allowably of employers for actions of customers for sexual harassment will be covered. Keywords: Sexual Harassment, Ministerial Exception, International Defense segments, INTRODUCTION have your attention, this paper targets sexual harassment; therefore, we will not be dealing with Strauss-Khan’s alleged sexual abuse charge, nor Julian Gangue’s sexual assault Khan’s charges.
The focus is on sexual harassment, not to commit violations of Title VII of the Civil Rights Act of 1964 and its amendments, but to help educate employers, in order to prevent these costly legal actions and payment of damages, or if they cannot be reverted, then to reduce the exposure involving actions that might not have been duce EXECUTIVE ORDER 10925 President John F. Kennedy in 1961 signed Executive Order 10925 requiring government contractors to take affirmative action to ensure that employees are try treated during employment, without regard to their race, creed, color or national origin.
On June 19, 1963, five months before his assassination President Kennedy submitted a bill to Congress, which was signed into law on July 2, 1964, and is known as Title VII of the Civil Rights Act of 1964. One of the more interesting elements is that neither the Executive Order nor the proposed Civil Rights bill included the word sex, and attention is not intended to be drawn to the allegations of extra marital activities of the former activities president, in regard to why he didn’t include sex. The term “sex was added as a last last-ditch effort by opponents of the statute to thwart the passage of the Act. “Sex as a basis of discrimination was added as a floor amendment one day beef the before 2 House approved Title VI’, without prior hearing or debate. ” “The bill quickly passed as amended and we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on sex. “3 The word sex in Title VII is where the EEOC in 1980 created the legal rational to form the Sex Discrimination Guidelines in dealing with sexual harassment in the workplace.
Title VII says nothing about sexual harassment, but the Supreme Court in Grids indicated that EEOC guidelines should be shown great deference by the courts. 4 The guidelines define sexual harassment as follows: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such harassment employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the such Ulnae v.
Eastern Airlines, Inc. , 742 F. Ad 1081, 1084 (1984). Holloway v. Arthur Andersen & co. , 566 F. Ad 659, 662 (1977). 3 Mentor savings sank v. Vinson, 477 US. 57, 64 (1986). 4 Grids v. Duke power co. , 401 U. S. 424,433 433-434 (1971). Sex, harassment and the workplace, Page 2 purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. 5 What happens if the harasser subjects both men and women to the same sexual women harassment?
This would be the equal opportunity harasser. Courts often conclude that because both men and women are victimized, the harassment does not disadvantage members of one sex relative to the other, therefore it is not discrimination based on sex. Discrimination In Lack v. Wall-Mart, the court stated that the supervisor “was Just an indiscriminately Mart, vulgar and offensive supervisor, obnoxious to men and women alike. “6 The Civil Rights Act and its amendments do not require that employees be treated in ways hat are thought of as being appropriate.
Employers can be demanding, tactless, crude, mean, and irritating. This is an unfortunate fact of life, in which the law does not require a general civility code on employers, nor does it require a utopian work environment, but it does require that employees not be sexually harassed, with a few exceptions. Dealing with the “based on sex” element requires that the harassment that occurred be due to the complainant’s gender, and did not occur to members of the members opposite sex.
The Supreme Court case, Harris v. Forklift Systems Inc. , dealt with this issue, when the president of Forklift Systems is found to have made comments to female employees, often in front of others, regarding their appearance and their intelligence; in their one instance, he called an employee a “dumb ass woman,” and in another situation, he suggest that a female employee and he “go to the Holiday Inn to negotiate your raise. The president also asked only female employees to retrieve coins from his front pants coins pocket, and only threw objects on the ground in front of the women and asked them men had been demeaned and equally abused this would not have been a violation of he Civil Rights Act, even if a hostile work environment was created. 8 Harassment must be discriminatory, not merely abusive or inappropriate to be protected under the Civil Rights Act.
Bullying or abuse in the workplace that is not discriminatory under the Civil Rights Act, still might be actionable under civil claims ‘minatory and/or criminal charges for assault, battery, intentional infliction of emotional distress, and other actions. There are two kinds of sexual harassment protected under the Civil Rights Act. They are quid pro quo and hostile work environment. Quid pro quo means “something for meeting” or “something given or received for something else. ” Burlington Industries v.
Alert, the Supreme Court held employers vicariously liable under agency law principles for the harassment by a supervisor who has authority over the sexually harassed employee. 9 Quid pro quo relates to tangible employment action regarding sexual harassment involving situations where a supervisor or individual with authority over the subordinate with has taken significant adverse tangible employment action, such as discharge, demotion, or an undesirable reassignment against a subordinate employee for the employee’s refusal 5 9 C. F. R. , Chi.
XIV, part 1604. 11 (1980), 1629 C. F. R. Part 51604. 11@) (200 (2008). Lack v. Wall-Mart, 240 F. Ad 255, 262 (2001). 7 Harness v. Forklift system, 510 U. S. 17 (1993). 8 sterner v. Showboat operating co. , 25 F. Ad 1459 (1994). 9 Burlington Industries v. Alert, 524 U. S. 742, 758 (1998). 6 Sex, harassment and the workplace, Page 3 to submit to the supervisor’s or individual with authority demand for sexual favors. With There are no affirmative defenses available to the employer for tangible employment action cases. Pease v. Alfred Photo Industries, Inc. Indicated that the following five elements must exist for the plaintiff to successfully prove quid pr quo harassment: (1 . ) “Plaintiff is a member of a protected class; Plaintiff was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors from a supervisor or individual with authority (3. ) Harassment complained of was based on sex; Submission to the unwelcome advances was an express or implied condition for receiving some form of Job benefits, or refusal to submit to sexual demands resulted in a tangible Job detriment; and (5. ) Employer knew or should have known of the harassment. 10 player The distinction between quid pro quo and a hostile work environment regarding sexual harassment is important for determining employer liability. Hostile work environment is broader than quid pro quo and does not require an adverse tangible and employment action against the employee. The harassment can be caused by a supervisor, fellow employee, or a third party, such as a customer, vendor or stalker, if the employer knew or should have known of the harassing conduct and failed to take appropriate harassing corrective action. How hostile must the workplace become before the law is violated? In the Merits U. S.
Supreme Court case, the court held that for sexual harassment to be actionable, no tangible Job detriment was necessary, but that the hostile work detriment environment harassment must be unwelcome conduct and it must be sufficiently severe or pervasive to alter the conditions of employee’s employment and create an abusive work environment. 11 Conduct that unreasonably interferes with an employee’s work performance reaches an actionable hostile work environment more quickly than mere offensive utterances, as does physically threatening conduct. 12 Whether the offensive activity has occurred in Louisiana, which is the 5th Federal
District, or in Indiana, which is the 7th Federal District, the Courts have indicated that common sense and context must apply before courts and Juries in determining whether the conduct is severely hostile and abusive. 13 The employer can raise affirmative defenses, if there is no tangible loss from a hostile work environment involving sexual harassment. The defenses are as follows: (1 . ) “the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior at its workplace and the plaintiff employee unreasonably failed to take 10 Pease v. Alfred Photo Industries, I
Inc. , 667 F. Soup. 1188 (1987). Mentor v. Vinson, 477 US. 57 (1986). 12 13 Indent v. Freeman Decorating, Inc. , 164 F. Ad 258 (1999); Patty v. Family Health System, Inc. , 280 F. Ad 749 (2002). 11 Sex, harassment and the workplace, Page 4 advantage of corrective or preventive opportunities provided by the employer or to avoid harm otherwise. “14 The existence of an employer sexual harassment policy and notification employer procedures will aid the employer in proving an affirmative defense in hostile environment cases. Another defense is that the employer has less than 15 employees.
The numerously acquirement goes to the merits of the case, and the employer must raise this defense at the beginning of the case, or the employer is deemed to have waived this defense to liability. 15 A third and creative defense for sexual harassment might be to use the ministerial exception rooted in the First Amendment. The “ministerial exception” allows religious employers to avoid liability for discrimination when making employment decisions concerning employees who qualify as ministers. 16 The ministerial exception defense was used in Hosanna-Tabor Evangelical Lutheran Church and School v.
Equal Employment or Opportunity Commission, which was a Supreme Court case decided January 1 1 , 2012, involved a lawsuit under the American with Disability Act. The Court recognized that the ministerial exception, grounded in the First Amendment, precluded application of employment discrimination legislation to claims concerning the employment relationship involving the ministerial exception.
If the government were to interfere with the employment decision of the church, the First Amendment rights under the Establishment Clause could also be in violation. In the recently decided Supreme Court case, Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, Cheryl Perish, an employee and teacher, brought a claim against Hosanna Tabor. After being deign diagnosed with narcolepsy, Perish began the 2004 2005 school year on disability. When she tried to 2004-2005 return to work in January of 2005, the school reported that they had hired another teacher to fill her position.
Refusing to resign from her position, Perish threatened legal action threatened “insubordinate and disruptive behavior” along with damage done to her “working relationship. ” Perish, along with the EEOC, claimed that her termination was in violation of the Americans with Disabilities Act. Under the primary duties test, the Supreme Court ruled in favor of Hosanna Tabor Evangelical Lutheran Church and School stating that the court believes that “the ministerial exception bars an employment discrimination suit brought discrimination on behalf of a minister, challenging her church’s decision to fire her. 4 While the ministerial exception relates to employment discrimination pertaining to religious institutions, the 1991 Amendment to the Civil Rights Act of 1964 provides a 1964 defense for employers working in foreign countries. The language of the 1991 Amendment may provide protection for an employer regarding sexually harassment allegations involving its employees.
Under the 1991 Amendment: “It shall not be unlawful under section 703 or 704 for an employer (or a corporation controlled by an employer), labor organization, employment agency, or Joint labor prearrangement committee controlling apprenticeship or other training or retraining (including on-the-Job training programs) to take any action otherwise prohibited by such inning section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation), such organization, such agency, or such committee to violate the law of the foreign country in which such workplace is located. ” The above section of the 1991 Amendment forces employers to comply with the laws of the country in which the workplace is located. When operating in progressive and satirized cultures, the clash between culture and legislation may be of little d concern. However, as our globalizes economy expands to include a multitude of nations and cultures, the statutory dynamic is changing. If a company operating in the United States begins a venture in Saudi Arabia, the United employer must abide by the laws of Saudi Arabia. If an American woman was to be assigned to a position at this workplace, she would be subject to Saudi law.
While her male counterparts could obtain a license and drive, a female is unable to drive in Saudi license 24 see 17 Sex, harassment and the workplace, Page 6 Arabia. Under EEOC guidelines, this hypothetical company may have committed sexual discrimination under the Civil Rights Act of 1964. Since sexual harassment is based on sexual discrimination, there are all kinds of hypothetical in which a female employee might be sexually harassed because of the clothes she wears or doesn’t The 1991 Amendment could provide a defense for t employer. The Continuing the hypothetical, Saudi Arabia adheres to a strict policy of sexual segregation. Under strict Islamic Shari law, women are not allowed to be in the dwelling or in a vehicle with an unrelated man.
In one situation, a Saudi Arabian Oman who was raped 14 times consecutively by 7 men was sentenced to 200 lashes and 6 months in Jail, and the crime that the woman committed: entering the vehicle of an unrelated male. In a separate situation, a 75 year old woman was given 40 lashes and 4 months in prison for and 27 letting a young man deliver bread to her dwelling . Under the 1991 Amendment, the guidelines for sexual harassment must abide by the laws of the foreign nation. If a woman from employed by a United States global corporation were to be employed in Saudi Arabia, she would be forced to adhere to the confines of Saudi law. Although he law may constitute sexual harassment by our standards, no penalty may be levied against the employer under the Civil Rights Act.
Aside from the international impact, the 1991 Amendment to the Civil Rights Act of 1964 provided codified clarification to the burden of proof required to prove an unlawful employment practice. Under 42 USC S IEEE 2000+2: “(m) Impermissible consideration of race, color, religion, sex, or national origin in religion, employment practices. Except as otherwise provided in this title [42 USC IEEE et see. ], an unlawful employment practice is established when the complaining party monstrance that race, color, religion, sex, or national origin was a motivating factor for national any employment practice, even though other factors also motivated the practice. Prior to the 1991 Amendment, it was at the court’s discretion to decide whether or not an employment practice was altered through unlawful consideration of race, color, unlawful religion, sex, or national origin. While case law supports the principle that an unlawful consideration need not be the sole factor in altering an employment practice, the burden of proof was unclear. Under the 1991 Name Amendment, the so called “mixed-motive” dive” standard emerged.