Legal Definition and Application of the Law
Laws are enforced to protect the innocent. Seaquist (2012) explains that Title VII of the 1964 Civil Rights Act prohibits discrimination with regards to a person’s sex. Section 703 of Title VII clearly states that it is an unlawful act for employers to refuse or fail to hire or fire individuals, or otherwise discriminate against them with respect to compensation, terms, conditions, or privileges of employment based on a person’s race, color, religion, sex or national origin. The statutory definition of sexual harassment is found at 29 C.F.R. § 1604.11 and states that harassment on the basis of sex is a violation and consists of such components like unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. In addition, a plaintiff can charge an employer for allowing or condoning an atmosphere of abusive words or acts with a hostile environment lawsuit. An employee that has been discriminated against, as in Harris v. Forklift Systems, 510, U.S. 17 (1993) in which the plaintiff filed suit because of the insults that were endured with respect to gender. The individual was well within their rights to seek justice and is directed to do so with their state’s discrimination agency or with the Equal Opportunity Employment Commission (EEOC) prior to pursuing litigation (Seaquist, 2012). This arrangement provides many advantages, one of which is to preserve the plaintiff’s rights to state a claim should they fail to do so through federal channels. If the plaintiff can provide a burden of proof, then the defendant must rebut the presumption of discrimination by presenting evidence there was another legitimate reason that was nondiscriminatory.
There are a number of ways a plaintiff can defend their position. Gordon (2007) suggests that to establish a prima facie, or clear case of sexual harassment, the plaintiff must produce detailed evidence to support their claims. Title VII, with state and local laws that are modeled after it, grant employees rights that were traditionally withheld from them. In addition, the Equal Pay Act of 1963 protects them as it prohibits paying different wages based on gender for jobs that any sex can perform that possess equal skill, effort, and responsibility (Gordon, 2007). In other words, in a contemporary business atmosphere, any employer that treats women differently than men simply because of their gender is in violation of the law.
Leaders that establish an ethical environment lower the risk of sexual misconduct and litigation. Gordon’s (2007) research revealed that a typical Fortune 500 company, for example, loses $6.7 million a year in absenteeism, experiences low productivity, and high employee turnover because of sexual harassment situations. In addition, the average jury award for a sexual harassment lawsuit is $450.000. Furthermore, one out of two sexually harassed individuals is by the victim’s supervisor. Sadly, most people that experience this situation do or say nothing about it for fear of repercussions including: (a) punishment, (b) accusations of slander, (c) dismissal or being ignored, and (d) termination. Studies also reveal that 95 out of 100 working women have received sexual material, such as letters, emails, phone calls, photos, and text messages at work. The toll this takes on their well-being is revealed by statistics that conclude that nine out of every ten sexually harassed women suffer from debilitating anxiety reactions including depression, headaches, immune disorders, and other physical ailments (Gordon, 2007). These are but a few of the liabilities employers face when they confront sexual discrimination and harassment issues in the workplace.
Employers must have a working knowledge of labor law and their obligations with respect to dealing with employees. Rassas (2011) reminds us that sexual harassment is not a kind of romantic behavior between two consenting adults. In a social environment, where there is a desire to please one another, for instance, both people respect and accept each other’s boundaries. In a work situation, however, one party is often unable to object the other’s behavior. In a supervisor-subordinate relationship, the subordinate is under the influence of the manager and is fearful of demotion or losing their job. Staff members expect their supervisors to make demands related to work, not cross barriers to ask for intimate favors (Rassas, 2011). For example, many employees at my former place of employment in the music industry, were encouraged to participate in after hour events to support the bands. These events took place at local bars and nightclubs. In one incident, a vice president from another department, acting as a concerned supervisor, used safety issue concerns as a reason to make sexual advances. In this situation, the man behaved in a friendly manner, as a concerned parent or trusted family member, taking on the role of protector and rescuer to earn trust. In other words, the executive used the issue of protection as guise to lure a subordinate employee into a false sense of security and friendship. Once the subordinate felt safe that the initial gesture was innocent, interpreting it as an act of kindness, the executive perceived this as a green light to continue his advances. He then proceeded to take the young employee’s hand and held it in a manner that intimate couples do. This behavior was supposed to make the new recruit feel more comforted and safe in the hostile bar room environment the manipulative executive painted it out to be. However, quite the opposite transpired. To the new employee it was extremely uncomfortable and perceived as inappropriate behavior. The executive continued with his ruse because in his perception, the advances were not rejected. In reality, the new recruit out of nervousness and fear was merely being polite. The subordinate was a new employee at the organization and did not have the support system to seek guidance, help, or protection for that matter. She relied on the only means of defense she felt she had available: playing dumb and ignoring the gestures.
A common scenario that occurs with many women that experience date rape is a woman says no to the man assaulting her, however, he perceives this as a yes answer because it presents a challenge in his mind and a new goal to a focus on: her submission. These individuals are clearly imbalanced and have distorted perceptions of safe boundaries. From their given position of power, they view the rejection as a game of cat and mouse. In other words, they believe the woman is saying, “No! Don’t stop please!” In reality the woman is actually saying, “No! Don’t! Stop! Please!” In short, leaders that behave like this are blinded by their ambition and sexual passions which can dull their perceptions beyond all reason. The music executive was determined to continue with his efforts of pursuit because of the trophy that awaited him, “bragging rights to his colleagues.” Many executives are so driven by their ego and lust for power they do not perceive their behavior as inappropriate. In their view, sneaking away with a subordinate for cocktails, or enticing them with a meal at a trendy Hollywood restaurant, concocting work related business as an excuse to lure the employee into having a dinner date with him is not unheard of. In short, it is how business is conducted in many industries. This is just one way harassment problems evolve. Supervisors with huge egos, personality, and worse, mental disorders, lack common sense because of their condition. In addition, some of these individuals justify their actions because of their position and a sense of entitlement. They disrespect the views and rights of others and quite frankly are in dire need of psychological management and education in what constitutes proper behavior and safe boundaries. These individuals are so focused with their personal agenda they lose sight of all reason including to uphold their responsibilities as a leader. Additionally, they use their power to manipulate and engage in tactics of deception to achieve their own goals. McGraw (2012) suggests that there are many reasons as to why this can happen including a person’s life experiences, mental illness, drugs, greed, the environment, and poor role modeling. These are components that can forge damaged people so that they do not have a clear conception of how to develop and build healthy relationships (McGraw, 2012). Regardless of their background however, there are just people in the world that take advantage and hurt others for their own personal gain. Needless to say, a case against the music executive was never filed because at the time, the culture cultivated at the company did not view this behavior as an act of violation. In other words, it was accepted conduct in the boy’s club climate of the company that had been established during that era.
When victimized employees file a sexual harassment claim against a supervisor, it is equally important that employers know what to expect. Seaquist (2012) postulates that are two general kinds of defenses employers may use as a strategy (a) present evidence to substantiate that the employer exercised reasonable care to prevent and correct the behavior promptly and (b) present evidence that the plaintiff (employee) unreasonably failed to take measures of prevention or corrective strategies provided by the employer to avoid harm. The plaintiff on the other hand, must provide substantial evidence to support their claim (Seaquist, 2012). Unfortunately the process entails that the plaintiff reveal intimate details of that emotionally charged experience. Because of this many lack the courage or confidence to come forward to avoid further humiliation and chastisement from colleagues.
Improvement and Prevention
Employers that are educated in sexual discrimination and harassment laws can protect themselves and their employees. Advances in technology also create new opportunities for other forms of sexual abuse including sending pornographic material via electronic communication or the trending sexting behavior many engage in. To avoid this, successful leaders can propose and implement strategies to prevent this conduct in the work place. Gordon (2007) suggests leaders incorporate programs that offer guidance for staff members including special problems like sexual misbehavior in unique environments, including educational, military, religious, and governmental facilities (Gordon, 2007). In addition, strategies that offer to help employees learn how to communicate in an appropriate manner and deal with power and sexuality can also be effective. These include the development of guidelines and Codes of Conduct that can also serve to: (a) protect whistle blowers, (b) monitor policies to make sure they are being complied with, (c) hire good people, (d) apply techniques to discipline workers, (e) set an ethical tone, and (f) create an ethical conflict management team to assist in the behavioral management process.
Employers that are able to break free from old paradigms and release outdated views of how the sexes interact can help develop a culture where employees feel not only safe, but feel confident to discuss issues when they occur. These tactics help people to resolve issues before they reach crisis level. In addition, employers can implement systems that include a designated person to manage claims and support individuals that have been victimized by acknowledging that this is a form of abuse that requires disciplinary action including termination from the perpetrator should they be found guilty. Take the following situation for example, an employer pinches a woman on the backside, or makes comments like, “You’re a good lookin’ broad! Why don’t you come over here and sit on my lap so we can discuss the first thing that pops up?” If this occurs, all staff members must be made aware, that although this behavior may have been funny and tolerated fifty years ago, it is no longer acceptable conduct in a business environment. In fact, that behavior can now get a person terminated.
Business leaders that educate and empower their employees in legal issues with respect to sexual discrimination and harassment issues can help them defend their constitutional rights. Chopra (2013) reminds us that healthy relationships require healthy boundaries. They are an important component that helps determine how people perceive, behave, and honor each other (Chopra, 2013). Federal, state, and local laws protect workers from discrimination. These laws make employers responsible for the working conditions their employees are exposed to and remove obstacles that can hinder fair treatment to workers. In addition, women nearly constitute one out of every two workers in the workplace. This continual evolution of demographics is slowly shifting the social climate in American businesses.
Employers that are highly educated and well versed in business law can make more effective decisions. For example, many people that enter the work force come from environments that consist of problems including sexual misbehavior, domestic abuse, incest, and the sexual molestation of children. Plus, the public school system offers very little education and lacks effective programs to help students understand how to manage these issues. Consequently, many of them graduate and enter the work force with self-esteem and efficacy issues. Because their boundaries were violated by the people they trusted most, many are confused about what is appropriate behavior and what is not. Business leaders that are cognizant of these statistics are better equipped to develop strategies that support their employees and cultivate an ethical climate. These employers provide programs that offer education and devise codes of conduct that clearly establish rules and regulations to help deter ethical misconduct. Vietnamese Buddhist Monk Hanh (2012) asserts that the employment a person engages in should be an expression of their entire being. In other words, the vocation they choose can be a wonderful opportunity to express their deepest desires, provide a significant source of nourishment, happiness, transformation, and healing. On the other hand, the job a person engages in can also create a considerable amount of hostility, abuse, discontent, and suffering (Hanh, 2012). When individuals bring awareness and are mindful of their words and actions, they can help cultivate an ethical climate of understanding and compassion where workers feel safe to work in harmony with their colleagues, free of discrimination and harassment.
No one should ever have to struggle or suffer additional discourse or humiliation on top of the emotional distress and crisis they experience from the effects of sexual discrimination and harassment. Wilde (1987) purported that life is not meant to be a struggle. In nature, for instance, life requires a certain effort to sustain itself, but it does not struggle. In other words, a lion does not wake up each morning and roar, “I’m going to struggle like a wild cat today and hopefully by the time dinner rolls around I will have something hefty to chow down.” In other words, there is a big difference between the concept of struggling and that of making an effort (Wilde, 1987). Leaders that make an effort and devise support systems that discourage ethical misconduct, encourage victims to come forward, and do not punish the whistle blowers, can create a healthy environment where employees do not have to struggle to feel safe. The findings of this research deduced that while it may take considerable time and energy to examine legal situations in the workplace, employers that do so can prevent litigation because it helps them identify laws that have been developed to protect employees as well as help business leaders avoid facing penalties or fines they are liable for due to issues like sexual discrimination and harassment. Hanh (2012) purported that business leaders do not have to sacrifice their values to be successful (Hanh, 2012). In conclusion, employers that cultivate an ethical climate will most certainly operate their organization within the framework of the law and incorporate this stance into their codes of conduct. This effective leadership strategy is one that is likely to ensure an organization’s long term success.
This concludes my research in business law. Next week my research work focuses on marketing! Until then … have a great weekend and thanks for being a part of this educational experience with me.
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