Sexual Harassment and Discrimination Laws – Part 1

Published September 23, 2013 by Mayrbear's Lair

Introduction

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Business leaders face many challenges and issues in the work place and are required to manage them effectively as they surface in order to maintain a successful and comfortably safe working environment. Clarkson and Miller (2012) recommend that organizational leaders become educated in business law in order to function in the modern world citing that anyone who embarks on a professional career, whether in medicine, science, entertainment, government, or accounting, will benefit from knowledge of contracts, real and intellectual property law, landlord-tenant partnerships as well as other significant legal matters (Clarkson & Miller, 2012). For example, when a manager invites a new employee to join the organization and makes it clear the candidate was chosen because of their credentials and top performance levels, rather than being welcomed or embraced, the new hire discovers many are jealous and exclude the individual from participating in significant meetings or social events. Soon, the new recruit starts to feel alone and isolated. This is an example of one form of discrimination that takes place in the business world. One of the most difficult forms of discrimination employers can face, however, is sexual discrimination, if and when they are forced to deal with a complaint that is filed. Seaquist (2012) suggests that although many of these cases can be settled out of court or through mediation, charges of sexual discrimination are a very serious matter that continues to present problems businesses and women confront on a daily basis in the modern world (Seaquist, 2012). The focus of this research is centered on the analysis of the legal and ethical situations relating to sexual discrimination and harassment issues in a business environment. The analysis will include a brief explanation to offer a more concise definition as well as provide a brief background on the subject. In addition, it will include a discussion on the ethical concerns and how discrimination laws are applied citing examples to support the study. The research will also include a look at the liability exposure employers can face as well as provide recommendations for improvement and suggest prevention plans that leaders can implement to avoid facing litigation and costly damages. The study will conclude that even though it takes an enormous amount of energy, understanding the legalities and complexities of business law with respect to discrimination and sexual harassment situations can help employers avoid litigation and maintain a safe working environment.

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Analysis of Sexual Discrimination and Harassment

The Backstory

Smart business leaders recognize that knowledge in discrimination law puts them in a better position to create and enforce a climate that will prevent occurrences and behavior that encourages discrimination or sexual harassment because it can lead to costly lawsuits. For example, when women initially entered into the workforce, they began to experience a variety of discrimination issues.  In fact, many were discouraged from working outside of the household and often chastised. This attitude reflected the culture of that time, in that women had been conditioned to accept their role in society as the primary caretaker of the home and family while providing support toward their husbands careers. Once women entered the labor force, however, they were introduced to more kinds of discrimination including lower wages, exclusion from participating in certain occupations, and many were exposed to intimate violation in the form of sexual discrimination, harassment, and abuse at their job. In fact, not only are women victims of this behavior, they are often subjected to society’s failure to recognize that sexual harassment is another form of abuse like bullying and generally accepted as taboo. In other words, this behavior is typical in a patriarchal society that accepts this conduct as boys being boys, while the women are left to confront the traumatic experiences of the effects from it, as well as process and examine their own perceptions, which for the most part, were usually not supported. Today, many women still feel humiliated, ashamed, and fearful to come forward to avoid ridicule and further stress because the system does not provide adequate support systems to defend these victims.

Dating co-workers is not a new concept. People work long hours together, overcome challenges and share victories. As a result, they develop bonds and friendships that can lead to romantic relationships. This can bring great joy and fulfillment as well as create a hostile atmosphere. Many companies have policies against romantic liaisons for those reasons. In fact, it is not uncommon to hear executives spewing remarks like, “We don’t fish off the company pier,” from those resolved to comply with corporate mandates. MacKinnon’s (1979) studies reveal that the intimate violation of both women and men is common in American society and concludes that the behavior is typically contained by a patriarchal structure of power that works diligently to keep the topic nearly inaudible. In addition, men’s control over women’s material survival, education, and occupational advancements for example, have become institutionalized in many patriarchal systems (MacKinnon, 1979). Unfortunately, these patterns have been enforced for thousands of years and slow to change because of the complexities associated with them.

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Identifying Sexual Discrimination and Harassment

Discrimination and harassment issues are difficult to manage because it makes people have to confront the the topic of inequality. The first step business leaders can take to prevent sexual discrimination and harassment is to have a clear understanding of what it means. For example, in a sex discrimination case, if an employer deliberately discriminates against a female in the work place, it is called disparate treatment. Should the claim go to court there is a three step process the plaintiff must go through to present the burdens of proof. Should the defendant succeed in convincing the court there was a legitimate nondiscriminatory reason, the burden then shifts back to the plaintiff to prove the defendant’s position is false and inaccurate. According to Title VII and the equal protection clause of the 14th Amendment, the plaintiff must demonstrate a preponderance of evidence that supports the following criteria: (a) the individual is a member of a protected class; (b) the plaintiff was meeting the employer’s expectations; (c) the plaintiff suffered from the experience, (d) other workers of equal status outside the protected class were exposed to differential treatment. Furthermore, MacKinnon (1979) stated that the Equal Protection Clause of the Constitution guarantees that no state shall deny an individual equal protection of the law. According to the inequality approach, sexual harassment is viewed as sexual discrimination and seen as a disadvantage to women as a gender within a social context in which a female’s sexuality and material survival depends on, to the woman’s detriment (MacKinnon, 1979). In simple terms sexual discrimination can be defined as the unwanted acts and imposition individuals experience that is based on sexual requirements that takes place in a business relationship of unequal power.

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People have been fighting for equality since they discovered what that term meant. Fredman (2011) however, contends that equality is an ideal whose meaning shifts the closer it is scrutinized. In the meantime, the legal system recognizes and acknowledges two general types of sexual discrimination and harassment issues: (a) quid pro quo harassment, which can translate into the form of a promotion, hiring, or salary hike in exchange for intimate favors; and (b) an environment that promotes sexual harassment where workers are exposed to behavior including unwanted sexual advances, lewd comments, innuendos, or jokes (Fredman, 2011). For example, in the Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) court case, the plaintiff was required to provide evidence that discrimination had transpired, was based on sex, and created a hostile or abusive environment (Seaquist, 2012). This situation occurs when supervisors and managers have failed to take steps to implement programs and enforce policies that discourage inappropriate actions or have not successfully educated employees to refrain from engaging in this type of ethical misconduct.

Identifying discrimination laws also protects employees. For example, workers educated in sexual discrimination are better suited to identify it, or come forward to support others they suspect are being exposed to harassment from supervisors or other figures of authority who coercively initiate unwanted advances, favors, or pressures. Furthermore, employees that are not aware of their rights are susceptible to becoming harassment victims themselves, especially in situations where they lack or do not reciprocate feelings towards the individual making the advances.

Many victims are also silent when these events occur, because they are fearful of losing their job or facing other serious repercussions.  Gordon (2007) suggests that there are laws that prohibit sexual harassment in the workplace. They require that staff members identify and separate different kinds of sexual interactions. Although the theory seems simple, often it is not easy to approach because there are a variety of effective solutions individuals can take when they are approached by a direct supervisor or an influential authoritative figure that has control over their career (Gordon, 2007). For example, an individual with a history of abuse that enters the workplace may have challenges identifying boundary issues because of the abhorrent conditions and acts of violation from their own past experiences. Most victims of abuse are uneducated and ignorant of their rights. Unfortunately, many out of fear and survival protect their abusers and remain silent. Other individuals with self-esteem issues that typically result from the complexities of a fatherless upbringing can bond and develop affection towards their violators and even protect them. In short, many individuals that have been sexually victimized do not have the effective tools, knowledge, and self-esteem to rely on as a defense mechanism. Many experience anxiety over the possibility of termination from the supervisor that initiated the sexual advances or pressured them using their position of power to do so. People that are not empowered are not only vulnerable to abusers, but are defenseless because they lack the confidence, courage, and support to come forward.

References

Adler, L. (2013). The essential guide for hiring and getting hired. Atlanta, GA: Workbench Media.

Chopra, D. (2013, August 16). 21 day meditation challenge: Miraculous relationships. Retrieved August 16, 2103, from chopracentermeditation.com: https://chopracentermeditation.com

Clarkson, K., & Miller, R. (2012). Business law: Text and cases: Legal, ethical, global and corporate environment. Mason, OH: Cengage Learning.

Fredman, S. (2011). Discrimination law. New York, NY: Oxford University Press.

Gordon, L. (2007). The sexual harrassment handbook. Franklin Lakes, NJ: The Career Press, Inc.

Hanh, T. (2012). Work: How to find joy and meaning in each hour of the day. Berkeley, CA: Parallax Press.

MacKinnon, C. (1979). Sexual harrassment of working women. Boston, MA: Yale University.

McGraw, P. (2012). Life code. Los Angeles, CA, USA: Bird Street Books.

Palumbo, C., & Wolfson, B. (2011). The law of sex discrimination (Fourth ed.). Boston, MA: Cengage Learning.

Rassas, L. (2011). Employment law: a guide to hiring, managing, and firing employers and employees. New York, NY: Aspen Publishers.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Walsh, D. (2013). Employment law for human resource practice. Mason, OH: Cengage Learning.

Wilde, S. (1987). Life was never meant to be a struggle. Carlsbad, CA, USA: Hay House, Inc.

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