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Sexual Harassment and Discrimination Laws – Conclusion

Published September 27, 2013 by Mayrbear's Lair

Legal Definition and Application of the Law

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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.

Recommendations

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Liability Exposure

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.

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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

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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.

Conclusion

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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.

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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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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.

Sexual Harassment and Discrimination Laws – Part 2

Published September 25, 2013 by Mayrbear's Lair

Ethics

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Theories

Managers with an awareness of discrimination laws from a variety of vantage points, including ethics, can produce a more successful working environment and avoid lawsuits. Ethical theories help leaders decide what is morally acceptable. Geisler (1989) suggests that ethics can be defined in terms of what the organization deems as morally right and that each company creates its own set of ethical standards (Geisler, 1989). In a business environment, leaders look to their own views of morality and ethics to assist them in the decision making process. However, there are times when a leader is confronted with making a decision and is required to determine whether it is more important for the organization to engage in ethical practices or lawful ones. For example, when a claimant files a sexual harassment charge, they are seeking restitution for the violations they experience. In this situation, employers are obligated to manage both the legal ramifications as well as the ethical ones. In other words, while the proceedings are taking place, the employer must take the necessary steps to allow the justice system to prevail, while employers do what they can to support the individual that is suffering, rather than participate in efforts to isolate and humiliate the plaintiff further.

It is the employer’s responsibility to cultivate a climate that personnel feel safe in. Employees that experience discrimination feel unvalued and inadequate. In addition, employees that are subjected to sexual discrimination and harassment experience more physical and psychological problems. Employers need to protect themselves from these events occurring because victims have the support of the legal system to engage attorneys that will pursue restitution. Seaquist (2012) explains laws concern themselves with issues of right and wrong with the administration of justice. Business leaders should also take into consideration the topics of ethics and morality to help their personnel identify more clearly what is considered acceptable and unacceptable conduct (Seaquist, 2012). For example, business leaders that apply the ethical absolutism theory, accept that there are certain universal parameters that determine what is right and wrong. If stealing is wrong for instance, then it is always considered wrong regardless of the situation. Therefore a business leader that incorporates ethical absolutism will always consider stealing morally wrong. However, if the culture in a business has an open attitude towards sexual harassment and views this behavior as boys just being boys, then in an ethical absolutism environment, sexual harassment is accepted as morally right. Simply put, in an environment where many of the employees in upper management are engaged in extramarital affairs, these executives tend to hire employees that embrace the same attitude, or have a disposition in which they are happy to look the other way, or go with the flow, when it comes to ethical misconduct. Not only are personnel conditioned to accept this behavior, many in fact subscribe that there is nothing morally wrong with it. Corporations that cultivate a culture of religious fundamentalism on the other hand, base their code of ethics on scriptures written by prophets and would most likely reject a concept like this.  It is highly probable that they would view sexual discrimination and harassment as a sin and morally incomprehensible.

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Culture

American culture is slowly emerging from a patriarchal society that supported the male sexual dominance of women and employers that control their workers. For example, many corporate department heads from a former place of employment, hired assistants that were physically attractive with an uninhibited free spirit and disposition. Furthermore, they supported an environment that consisted of an open flirtatious atmosphere established by the leaders with various incentives like compensation, pay raises, promotions, free merchandise, or tickets and backstage passes to special events, the use of company limousines, and other similar perks to encourage and support that behavior. Sexual harassment complaints in this kind of culture are typically nonexistent because of the climate that has been cultivated by the supervisors that everyone conforms to, including low level employees.  In other words, they are able to maintain an unethical atmosphere because candidates for hire were only considered and remained as long as they embraced the established culture.

Employers also set the tone of a work environment by the people they hire. Adler’s (2013) research also indicates that many employers have a difficult time hiring and recruiting the best candidates because they are ineffective at implementing strategies to attract top performers (Adler, 2013).  One of the reasons for this is that many leaders have unhealthy perceptions of employee and subordinate roles in the workplace, especially those hired as personal or administrative assistants. Many executives view their assistants for example, as a reflection of themselves and therefore hire staff members that represent of a certain kind of image they deem appropriate for their department. For instance, in a corporate situation, the head of the legal department may hire staff members that adopt a conservative style based on skills and knowledge to represent the group of attorneys that operate that division. The publicity and promotion departments on the other hand, may hire staff members based on artistic and creative skills.  Staff members may consist of  more free spirited people with an open attitude, youthful drive and energy. In other words, the department heads set the atmosphere for the climate and ethical culture they develop and hire staff members that are an organizational fit in that arena.

There is no single law that covers all workers in the US. Walsh (2013) reminds us that employment laws consist of a patchwork of federal, state, and local laws that continue to evolve and are contingent upon many components including the size of the organization (Walsh, 2013). For example, as mentioned previously, many supervisors hire personal assistants based on certain components including, age, appearance, and physical type rather than seek individuals that are qualified with skills and knowledge. In addition, there are many executives that tend to view assistants as their trophy, rather than a skilled person best qualified for the job. This is indicative of a climate where women are perceived as objects, rather than individuals capable of innovation and considerable contribution to an organization’s success. In addition, these females are also viewed and discriminated against by other staff members of the same sex as well. For example, when I was hired as an administrative assistant in the music industry, issues of discrimination immediately began to surface in the corporate arena.  It was evident from the behavior of other staff members of the same gender and equal rank that I was an outsider to them. I later discovered that some of the women even jokingly referred to me as the new dish. In short, other staff members automatically made a judgment based on appearances, not because of my level of skills and knowledge. Rather than embrace and welcome me as a new employee, they engaged in acts of discrimination, making me feel isolated and friendless. In some cases, many employers and employees do not have a clear set of identifying acceptable and unacceptable relationship boundaries. This also fosters unhealthy relationships.

Legalities

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Legal and Political Aspects

Business leaders that understand the legal and political perspective of discrimination issues, are more likely to achieve the best legal outcomes. Palumbo and Wolfson (2011) suggest that patriarchal systems can also influence behavioral patterns that are enforced, legitimized, and perpetuated in a business arena (Palumbo & Wolfson, 2011). These systems can have a significant influence on politics and policy making. For instance, fundamental religion has played a significant role in the world in that many leaders use this position to justify totalitarian actions that are based on absolutist ideals. Leaders in this climate, reveal their ethical principles by the type of legal systems that support them. For example, the civil law system that is common in most of the European Countries (EC) meticulously outlines individual rights and responsibilities. In its quick implementation of justice and with limited power of judicial interpretation, it reinforces an absolutist kind of ethical philosophy with systems that require strict compliance to statutes that guide behavior and leave little room for deviation.

Common law systems, on the other hand, like those established in the US, leave wide latitude for interpretation and provide a multi-faceted frame for the appellate courts to determine (Palumbo & Wolfson, 2011). In other words, civil laws leave little room for misinterpretation, while common law offers latitude for litigants to argue. For example, in a country where civil laws pervade, a sexual harassment issue can be resolved quickly by the laws. In a country where common law systems pervade, both sides of the case must produce substantial evidence to support their position and in many instances, the defense will engage in tactics that degrade, belittle, and present the victim in an unfavorable manner to provide reasonable doubt with respect to a claim. Because of this, many victims do not come forward to avoid the humiliation of such an experience in addition to the violation they are processing and working to recover from.

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.

Environmental Statutes

Published September 20, 2013 by Mayrbear's Lair

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US legal systems are designed to protect citizens in an organized society with respect to a wide number of issues including criminal behavior, domestic and professional relationships, regulations of industry and business, as well as a multitude of other significant issues. One of the most difficult areas to manage and regulate is environmental law. Schroeder (2008) contends environmental laws are difficult to comprehend because of the complexities involved. Environmental laws are meant to constitute the regulations and actions that threaten or physically harm the natural world including the inhabitants of the environment (people, animals, plants, air, water, and so on). Environmental law is considered one of the most complex areas in the legal field because the laws that regulate the environment are derived from a variety of sources, including: (a) federal courts, (b) Congress, (c) various federal administrative agencies, and (d) international treaties. In addition, state legislatures, courts and administrative agencies, local government (cities, towns, and counties) influence these regulations. Because environmental law is a relatively new field, the involvement of these many entities, makes it difficult to analyze the various statutes and regulations that govern them (Schroeder, 2008). Furthermore, different areas of the law require different knowledge like administrative, criminal, and tort laws, as well as understanding the court system, the civil and criminal procedures, and constitutional laws. Plus, the relationships between these areas are not always easy to comprehend or observe. Finally, science also acts as a major contributor to the plethora of environmental issues. For example, an examination of the maximum contaminant levels for drinking water is one factor that can significantly determine the development and enforcement of environmental statutes and regulations.

environmental law

One environmental law that is relevant to me as a mother and a children’s learning coach, is Executive Order 13045 – The Protection of Children from Environmental Health Risks and Safety Risks 62 FR 19883; April 23, 1997. This environmental law is designed to protect children from the health and safety risks of products or substances that a child is likely to come in contact with or ingest (such as the air we breathe, the food we eat, the water we drink or use, the soil that surrounds us, and the products we use or are exposed to). The EPA’s responsibility is to evaluate the effects of these issues and introduce regulations that provide an explanation as to why the statutes are implemented as well as include information on potentially effective and reasonably feasible alternatives (Summary of executive order 13045 – protection of children from environmental health risks and safety risks, 1997). For example, children in a learning environment typically use and put crayons in their mouths, and some  will even bite into them as an experiment to appease their curiosity about the world that surrounds  them by enlisting the use of their taste pallets. If the crayon is produced from chemicals that are toxic, however, this can present a harmful situation to the children that play with them. This law forces manufacturers to incorporate safer methods, label products with warnings about toxic products, identify those that are non toxic, and punish manufacturers that do not comply. Without these regulations to protect children from harm, parents and teachers cannot feel confident or at ease with the products their children are using if they are not deemed safe indicated by a government agency seal of approval.

extreme-pollution

Business leaders for the most part, find dealing with environmental laws taxing. This is due to the complexities that these mandates have evolved into which includes of a system of statutes, regulations, guidelines, requirements, policies, and case-specific judicial and administrative interpretations that address a wide-ranging set of environmental issues and concerns which are created to deal with how humans interact with the environment and ecological systems. However, most business leaders just want to run their business and not have to worry or think about the many regulations they are required to comply with. Ewing and Steinway (2011) postulate that the key issue for business leaders to identify is what role the federal and state government plays in operating their business. For example, the traditional command and control system involves the establishment of environmental standards and permit enforcement procedures, liability assignment, and penalties (criminal and/or noncriminal) for noncompliance. These regulating authorities are granted the power to issue permits or licenses that authorize or prohibit activities that contaminate, harm, or cause pollution. Business leaders must comply with these mandates to operate their business to avoid penalties and fines (Ewing & Steinway, 2011). State groundwater protection laws, for example, provide detailed information that help business leaders better understand the permit programs they may require for their industry. For the most part, environmental laws serve to protect the environment as well as keep us safe from the products we use, protect the air we breathe and make sure the foods we eat are not contaminated. In conclusion, environmental regulations are meant to prevent industries from poisoning and contaminating the environmental and ecological fabric that we all rely on for our existence.

Next week concludes my research on business law with a three part blog that covers sexual harassment and discrimination laws. Until then have a great weekend everyone!

References:

(1997). Summary of executive order 13045 – protection of children from environmental health risks and safety risks. Washington: EPA. Retrieved September 3, 2013, from http://www2.epa.gov/laws-regulations/summary-executive-order-13045-protection-children-environmental-health-risks-and

Ewing, K., & Steinway, D. (2011). Environmental law. Lanham, MD: The Scarecrow Press, Inc.

Schroeder, K. (2008). Environmental law. New York, NY: Delmar Learning.

Employment Anti-Discrimination Laws Part 2

Published September 16, 2013 by Mayrbear's Lair

Part One of this series offered a brief overview of the systems that hiring managers implement to recruit potential top level performers. Part Two provides samples of the components that hiring managers utilize in the hiring process. The following fictitious samples were developed for the purpose of this research and are based on my previous employment experiences in the music industry.

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Job Description and Advertisement

Basic Information

Job Title: Administrative Assistant for the West Coast Vice President of Promotion

Job Purpose: The individual will provide administrative services for office systems in accordance with procedures, policies and engage in duties required of that department to the best of their ability, within the ethical framework established as outlined in the corporate employment handbook.

Job Overview: The individual hired for this position is required to perform the duties of the Administrative Assistant to the West Coast Vice President of Promotion that includes active participation and working in partnership with the supervisor and other staff members to build and maintain an ethical climate. The position also offers opportunities for career advancement.

Administrative Assistant Duties:

  • Maintains workflow implemented by systems established, studying models, incorporating cost reductions, reporting procedures and developing new ones.
  • Maintains, creates, and revises systems and procedures by examining operation practices, including data and record keeping systems, forms control, office layout, budgetary and personnel requirements and implementing changes.
  • Supports and develops administrative staff by providing information, educational opportunities and experiential growth opportunities.
  • Resolves administrative problems by coordinating preparation of documents, including reports, spreadsheets, analyzing data and implementing solutions
  • Maintains and ensures operation of equipment including preventive maintenance requirements; calling for repairs; maintaining equipment inventories; and evaluating new equipment, techniques, and technologies.
  • Provides information, as well as answers inquiries and requests.
  • Maintains supply inventories by checking stock to determine inventory level, anticipating need supplies, placing and expediting orders for supplies, and verifying receipt of supplies.
  • Completes operational requirements including scheduling and assigning administrative projects, as well as expediting work results.
  • Maintains professional and technical knowledge by attending educational workshops, reviewing professional publications, establishing personal networks, participating in professional societies.
  • Contributes to team effort by accomplishing results as required.

Job Advertisement for Social Media Outlets

Simulation - This is not a real advertisement

Simulation – This is not a real advertisement

Requirements, Knowledge, Skills, and Aptitudes

Bachelor Degree, Minimum Five Years’ Experience, Reporting skills, Administrative Writing Skills, Computer Technology Skills, Microsoft Office Skills, Managing Processes, Organization, Analyzing information, Professionalism, Problem Solving, Supply Management, Inventory Control, Verbal and Nonverbal Communication Skills.

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Legal and Illegal Questions to Ask Potential Hires

Employers are vulnerable to litigation in the pre-employment process if they are not cognizant of employment and discrimination laws.  The most effective hiring managers implement supportive strategies and programs that avoid discrimination to attract top performers.  Seaquist (2012) postulates that company leaders should educate employees and hiring managers when designing the interview process to make sure they do not over step any boundaries.  This means avoiding any questions that would be in violation of Title VII mandates, including: (a) race, (b) sex, (c) national origin, (d) disabilities, and (e) criminal background (Seaquist, 2012).  Information can be obtained with respect to the aforementioned topics as long as they fall within the legal parameters of both Title VII and state regulations.  For example, an interviewer may include a list of different races on the application that the candidate can select, without having to go into further detail about their culture or personal beliefs.

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Using this framework as a model, the questions listed below proposed by McKee (2012) will help outline more clearly, inquiries that are considered in compliance with employment laws, as well as those that are not.  Most experts agree that the best strategy is to pose questions that inspire and motivate the individual to speak candidly without adding stress or pressuring them into answering questions the way they believe the interviewer expects.  These questions are formulated to engage the individual in feeling comfortable sharing their experiences and can help alleviate trepidation (McKee, 2012).  The following twenty questions illustrate only a few samples of many that can be considered appropriate and inappropriate during the interview process:

Questions Deemed Legal by the EEOC

1.)   Explain to me why you may be qualified for this job?

2.)   Are you willing to relocate?

3.)   Can you describe a time when your work was criticized? How were you able to manage the situation?

4.)   Can you describe a time when your workload was heavy?

5.)   If you were hired, what will we know about you one year down the road?

6.)   How do you rate yourself as a professional?

7.)   How do you evaluate success?

8.)   How do you handle stress and pressure on the job?

9.)   How does this position fit in with the career path you envision?

10.)  Can you tell us about a failed project?

Questions Deemed Illegal by the EEOC

1.)   How many times have you been married?

2.)   What kind of relationship do you have with your family?

3.)   Have you ever had sex at work?

4.)   Do you steal or shoplift?

5.)   Do you struggle with weight or feel ugly?

6.)   Have you ever been caught cheating on your spouse?

7.)   What have you done with your life so far?

8.)   What are your religious beliefs?

9.)   What is your sexual preference?

10.)   Do you text and drive?

Conclusion

Employers that are not fully aware of employment and anti-discrimination laws will not be effective in the hiring process.  Rassas (2011) reminds us that it is important for business leaders to have a firm grasp of employment laws and to recognize the limitations (Rassas, 2011). Because no single set of employment laws cover all employers or their employees, business leaders that understand the intricate complexities of employment and discrimination laws will have an edge on their competition. In addition, to discover that silver bullet employee, leaders create effective strategies to recruit top level performers and design job descriptions that inspire and motivate candidates.  They design and implement programs that target quality potentials and refrain from using those that focus on attracting quantity.  The findings of this research conclude that even though violating employment laws can lead to litigation, hiring managers interested in recruiting top level performers must be aware and educated in employment and anti-discrimination laws to prevent legal action and costly fines.

References

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

McKee, P. (2012). How to answer interview questions. Atlanta, GA: Career Confidential.

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.

Employment Anti-Discrimination Laws – Part 1

Published September 13, 2013 by Mayrbear's Lair

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One of the most significant tasks business leaders face is attracting and recruiting employees that are top level performers.  In fact Adler’s (2013) research revealed that few hiring managers even consider implementing effective strategies. Furthermore, they do not work in partnership with potential hires, nor do they consider enlisting the help of coaches to attract top performers. For example, most companies still post bland, uninteresting job descriptions, crossing their fingers in hope that they will find the ideal individual who is an organizational fit. In addition, the most shocking aspect of this is that most business leaders focus their resources and efforts going after the 17% of candidates who are actively seeking employment, yet desire to employ the 83% who are not looking for work (Adler, 2013). This research is focused on systems that hiring managers can implement to recruit potential top level performers while avoiding the violation of any employment or anti-discrimination laws.

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To examine the process more effectively, a false scenario is examined that provides an example of skills and hiring techniques that may be useful in recruiting a new full-time departmental employee. For the purpose of this study, the focus is centered on filling an opening position for an administrative assistant. The case study includes a detailed description of the position that is in compliance with federal laws. In addition, to attract top performers, an advertisement has been included that is intended to be directed at social media outlets and job recruiting websites. Also included in the research, to support the analysis, is a series of legal and illegal questions that provide a few samples to illustrate topics hiring managers are permitted to inquiry about and the manner in which to draw out information that is in accordance with EEOC mandates, as well as those that are in violation of them. This research will conclude that hiring managers who are not trained or are unfamiliar with employment and anti-discrimination laws can make poor decisions in the hiring process, risking litigation and exuberant fines.

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The Hiring Process

Employers want to hire top performers, but most are not cognizant of doing so in effective ways and avoid violating anti-discrimination and other significant employment laws. For example, Adler (2013) purports there are a variety of reasons that hiring managers have a hard time finding the best recruits, including that: (a) employers depend on a surplus of candidates during the hiring process, but seek them in a talent scarce environment; (b) candidates do not know how to engage in the hiring game; and (c) few hiring managers take responsibility for attracting quality candidates because they are focused on attracting quantity, hoping to discover that diamond in the rough. These are all significant issues that need to be addressed, dissected, understood, and reframed in a strategic manner to produce the most effective hiring programs that will attract top talent  (Adler, 2013).  Taking these components into consideration, hiring managers must also comprehend why people perform at peak levels while others underperform. Most hiring managers, however, maintain a preconceived notion that employers can remedy any situation that arises after the fact.

Next week’s post will have the conclusion with components that have been designed as an example to illustrate one effective method of how hiring managers can attract top level performers including job description, advertisement, as well as samples of legal and illegal questions that hiring managers can ask.

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References

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

McKee, P. (2012). How to answer interview questions. Atlanta, GA: Career Confidential.

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.

Elements of a Contract

Published August 30, 2013 by Mayrbear's Lair

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Defining a legal relationship is a complicated issue because of the many facets involved. Scholars like Blum (2011) provide a relatively simple explanation of the complexities of a contract by describing it as an exchange relationship that is established orally or in written form that is made between two or more individuals, contains at least one promise, and is recognized as a legally binding agreement (Blum, 2011). To better comprehend these concepts, the focus of this research examines the elements that must exist for a contract agreement to be considered enforceable by law. The study will examine the following contractual elements including: (a) offers, (b) acceptance, (c) legal consideration, (d) capacity, and (e) legality of purpose. In addition, the research will identify the components that govern the parameters of common law and the Uniform Commercial Code (UCC). For the purpose of this study, a fictitious scenario has been created with respect to an individual that has been hired and offered a two year contract as the head chef of the Fabulous Hotel Company. As a sample to illustrate contractual issues that individuals may encounter, the agreement contains a non-compete clause that will serve to provide a closer analysis of specific contractual obligations and restrictions. The findings of this study will conclude that the courts are not able to successfully arbitrate disputes without an essential contractual agreement to define the terms that make it enforceable by law.

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The Anatomy of Contracts

Elements of Contracts

Without agreements spelled out in contracts, the courts are unable to adjudicate promises between individuals. In today’s business environment, many professionals find themselves dealing with contractual issues in one way or another. Blum (2011) defined a contract as an exchange relationship that is agreed upon and is recognized as enforceable by law. In addition, a contract must consist of the following elements: (a) an oral or written agreement between two or more people, (b) an exchange relationship, (c) at least one clearly defined promise; and (d) the enforcement of the law (Blum, 2011). Undoubtedly, the most significant element of any contract is that it is a voluntary, consensual relationship.  In short, the contract is created because the parties are doing so free of will, with the intent of being bound by an agreement that outlines the parameters of their relationship. Furthermore, Seaquist (2012) contends that for a contract to be considered enforceable, other essentials components must also exist. These include: (a) an offer, (b) acceptance of the offer, (c) consideration of the agreed upon exchange of energy, (d) the mental state or legal ability of the parties entering into the agreement, and (e) that the transfer of goods or services are conducted within the legal framework of the law (Seaquist, 2012). Without these elements, a contract is unenforceable.

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Contract Terms and Conditions

Contracts that are recognized by the law must contain at least one promise. In addition, it is important for people to understand that there are certain laws that govern legal contracts. For example, contract law is either governed by common law or the Uniform Commercial Code (UCC). Seaquist (2012) asserts, that if the agreement involves the sales of goods, it is governed by the UCC regardless of whether the individuals involved are merchants or not. If on the other hand, the contract involves anything other than the sales of goods – like real estate purchases, development, insurance, or professional services – then the contract is governed by common law. There are exceptions, however, like when a company is hired to build a restaurant where materials and services are required to complete the project. In order to determine which law governs this kind of contract, the courts rely on which is greater: the cost of goods or the cost of services. If the answer is the cost of goods, then it falls under UCC laws; if the cost of services is greater, then the contract would fall under the regulations of common law policies.

Contracts are recognized by the law and define the terms of an exchange relationship. Eisenberg (2002) pointed out that there are two kinds of promises that are made: (a) those that are legally enforceable and (b) those that are not. Originally, the term consideration was coined to mean a bargain, or an exchange of energy (Eisenberg, 2002). To illustrate this example, consider the following scenario: Mr. Ed promises to give Tom $200 for landscape services. In order to better determine if that promise has been broken, the individuals need to take into consideration whether or not the broken promise was given as part of the bargain. Eisenberg’s studies suggested the following questions should be taken into consideration for arbitration: (a) was the bargain merely nominal: in other words did the promise have substance; (b) was the bargain based on a promise of surrendering any legal claims; (c) did the bargain contain an illusory promise, or a promise that appeared to be genuine but in fact was not; and (d) does the bargain involve a promise to participate in an action that the other party was already obligated to take. Once these elements have been considered, the parties can determine whether these factors make that promise enforceable. In short, the concept of consideration is a significant element for the enforcement of contracts because contemplation is required to make them legally binding.

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Noncompetition Clauses

It is important for people who enter into contracts to comprehend the terms and conditions of them to avoid misunderstandings that may lead to litigation. For example, some contracts contain a noncompetitive clause also known as a covenant not to compete. Depending on the conditions of the agreement, generally these clauses are viewed as enforceable by the courts. Seaquist (2011) contends that whether a contract agreement stands alone or is contained within another contract – like an employee contract – the noncompetitive clause of an agreement can be considered null and void under the following conditions: (a) if the length of time involved is too great – like, for example, the rest of someone’s life, or (b) if the location or distance is too substantial and prohibits, for instance, an individual from engaging in employment on an entire continent (Seaquist, 2012). Employment contracts can affect a person’s career, so it is essential that they comprehend all the elements contained in the agreements they execute to make sure they can accept the parameters that have been outlined.

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Contract Case Study

The Fabulous Hotel

For the purpose of this research, a fictitious scenario has been established where an individual has been hired in the head chef position at the Fabulous Hotel Corporation (FHC). In this case study, the person has been offered a two year employment contract. After building an impressive reputation at the FHC, another hotel is interested in hiring the chef for their company and decides to pursue them. The head chef’s employment contract, however, has a provision that prohibits the employee to work as a chef for another hotel in the same metropolitan area for a period of two years after leaving employment with FHC. Seaquist (2011) proposed that if the employee agreed to terms that prohibit them to work as a chef for the entire country, for instance, a court would most likely determine the contract illegal because it falls under the category of enforcing it over too great a distance. The courts consider each case separately with respect to contract law by determining the line between reasonable and unreasonable terms they outline (Seaquist, 2012). In the meantime, it is the responsibility of each individual that enters into a legally binding agreement that they engage the services of an attorney or paralegal to ensure they comprehend the terms of the contract and the language of every clause they sign and agree to. The choices of the chef then, are limited because of the legally binding document that prohibits the individual from working in the same metropolitan area for a two year period. There may be other options available, like for instance, the new company offering FHC a settlement to release the individual from the contract, but those are matters that can be further investigated and determined by an attorney who can make those recommendations in accordance with common law regulations.

Deal-Breakers

Contract Breaches

Contracts are created to define an exchange relationship that is recognized by the law. To avoid litigation it is imperative that anyone that signs a contract knows the details of what they are committing to. For example, if one party intentionally deceives another into signing a contract, that is considered a knowing lie.  In other words, the agreeing party entered into the agreement based on a lie. Seaquist (2011) purported that if the innocent party can provide evidence to support they committed to a contract based on misrepresentation, the innocent party can be released from the contractual obligation in an act called rescission and the agreement becomes void (Seaquist, 2012). In short, when fraud in the execution of a contract is established, it is considered unenforceable by both parties, not just the victim.

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Conclusion

Many experts agree that the most important attribute of a contract is that it is a mutually consensual, voluntary relationship. In fact, Blum (2011) submits that a contract is entered into from parties that are acting on their own accord with the intent to be bound. Because of this element, is in their mutual interest to reach an agreement that outlines in detail the essential terms of their relationship (Blum, 2011). In addition, the element of consent also helps determine contractual obligations for many kinds of legal duty, such as the commitment to compensate for services rendered or to pay taxes.

This research provided many examples of the elements contracts must consist of in order for them to be considered enforceable. Chopra (2013) postulates, that an individual’s capacity to affect others with their energy is both a gift and a responsibility that people should not take lightly. When individuals choose to behave with compassion and unity, they can become a powerful force for positive change to achieve their goals. By doing so, they create opportunities to discover and develop deep and meaningful relationships, both personally and professionally (Chopra, 2013). All of the issues addressed in this study are important components that can serve to empower individuals in the decision-making process when it comes to bargain-making and entering into contractual obligations. The findings of this research conclude that a contract must consist of certain elements for it to be considered an enforceable agreement and that without those essential agreement terms the courts are unable to arbitrate disputes effectively.

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Labor-Day-2013

Personal message from Mayr:

Due to the Labor Day Weekend, there will be no post next Monday. Be on the lookout next Wednesday for my upcoming post on “Securities Laws”. Thanks for being a part of this learning experience with me.

Until next Wednesday … have a great holiday weekend and stay safe my friends!

Mayr

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References

Blum, B. (2011). Contracts: Examples and explanations (Fifth ed.). New York, NY: Aspen Publishers.

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

Eisenberg, M. (2002). Gilbert law summaries on contracts (14th ed.). Dallas, TX: The Barbri Group.

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

Negligent Tort

Published August 23, 2013 by Mayrbear's Lair

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Companies can be liable for a negligent tort if they falsely represent a product, the product brings harm, or it causes injury to consumers.  These offenses are considered unintentional torts of negligence. Bevans (2011) suggests that negligence can be difficult to prove and not all acts of neglect are actionable under the law. Nevertheless, under certain conditions, a party that is neither negligent nor guilty of an unintentional tort may still be subject to damages and when injuries are sustained, presents an opportunity for a cause of action (Bevans, 2011). This research is focused on the unintentional actions of negligence that resulted in a product recall. To better comprehend and illustrate the legal process to identify the liable party, the study of this research is focused on Recall Case Number 13-742, dated July 11, 2103, issued by the Staples Corporation of their catalog item known as the Bermond Fabric Manager’s Chair: a product manufactured and imported from China (Government, 2013). The research will also examine consumer protection laws and determine if the cause of action is based on: (a) warranty, (b) negligence, or (c) strict liability.  In addition the analysis will explore defenses for negligence as well as some of the typical components that can lead to a product recall case including: (a) elements of negligence, (b) consumer protection, (c) duty of care, and (d) foreseeability and proximate cause. The research will conclude that manufacturers are obligated to abide by duty of care concepts to patrons because consumer protection statutes can lead to litigation that can result in costly damages or, in extreme cases, bankruptcy.

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Product Recall Case Study

Bermond Fabric Manager’s Chair Recall

When a company receives an abundant amount of complaints about a product, they could be liable for negligence. Marsh (1999) postulates that consumer protection statutes offer consumers a safeguard against a manufacturer or company that sells a defective product. It is the responsibility of the buyer, however, to establish evidence that the consumer: (a) has a justifiable reason for the claim, (b) experienced harm or damage by the product, and (c) used the product correctly (Marsh, 1999). These components are essential to help attorneys determine whether to pursue absolute or strict liability actions and decide if the litigation costs will outweigh the potential damages.

The sample case study for this research is focused on a recent recall issued by Staples of a popular office chair. The incident addresses one of the most common offenses a business leader runs into: a potential strict liability case from an unintentional tort. Seaquist (2012) stated that in a strict liability tort, manufacturers, wholesalers, and retailers are the parties held liable for defects in the design or manufacturing of a product. Product liability torts are based on three causes of action: (a) warranty, (b) negligence, and (c) strict liability (Seaquist, 2012).  Under these parameters, a plaintiff can make a claim against the Staples Corporation because they were identified as the retailer of the product that caused harm when it malfunctioned.

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Negligence

Elements of Negligence

Even though recalls can prevent further harm from a defective product, manufacturers and the companies that sell products that cause injuries to consumers can be liable for negligence. Seaquist (2012) contends that in order to determine a negligence case, four elements are typically addressed: (a) proving the defendant’s duty of care, (b) evidence that supports the defendant breached their expected duty of care, (c) verifying the plaintiff sustained injuries caused by the breach, and (d) establishing evidence that the plaintiff suffered emotional or physical harm (Seaquist, 2012). In addition, to establish product liability litigation, the plaintiff must demonstrate that: (a) the product was properly used, (b) it was received in an unaltered form, and (c) it malfunctioned due to a design defect. For example, the government report stated the reason the office chair was issued a recall, was because the chair posed a falling hazard due to a weakness in the structure of the base. The report indicated the recall was issued after over forty consumers filed reports complaining the bases of the chairs broke.  In addition, two reported limb injuries and another suffered a bump on the head and sustained back injuries. Because litigation that involves negligence can be a costly event, companies take every measure to protect their organization from selling products that can cause death or injury to consumers. They also want to avoid negative publicity that can result in a loss of profits, because clients that are fearful and lose trust in an organization are reluctant to engage in commerce.

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Consumer Protection

Costly negligence litigation can also lead a company towards bankruptcy. Due to the rising number of manufactured products that result in injuries, the government created the Consumer Product Safety Commission (CPSC) to help manage consumer protection. Seaquist (2012) postulates that the agency monitors a wide variety of injuries, like, for instance, those sustained at public athletic facilities and amusement parks. The CPSC was established to help regulate safety in a variety of industries and hundreds of statutes and regulations were incorporated to support them. For example, organizations are required to follow the guidelines provided by the Virginia Graeme Baker Pool and Spa Safety Act to protect consumer safety in pool and spa environments. Government protection agencies also serve to mitigate the dangers of toxins with poison control implemented by the Poison Prevention Packaging Act and the Flammable Fabrics Act regulates flammable material that can be found in children’s clothing items (Seaquist, 2012). In short, consumer protection agencies and their offshoots help manage many different environments where issues of consumer hazards exist. The Staples office chair recall, for instance, was issued as a result of the complaint and incident reports filed from consumers which included injuries that were sustained. The recall decision, in this case, demonstrated that Staples was acting responsibly by taking swift action.  In addition, the recall strategy supports good business practices, demonstrated by their taking steps to address a situation and alleviate further incidents by removing a hazardous product from their catalog. This action supports an ethical culture and is behavior that falls in accordance with Consumer Product Safety Act mandates.

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Duty of Care

Companies are also obligated to follow duty of care concepts. Marsh (1999) points out that consumer trades with merchants also occur through internet commerce as well.  Each of these transactions, however, requires that the ordinary rules of contract law apply.  In other words, since each is considered a consumer transaction, special consumer protection statutes and rules apply (Marsh, 1999). For this reason, it is a company’s responsibility to engage in duty of care practices. This means that they acknowledge and accept a standard of behavior that is expected of an individual in a certain circumstance.  In some instances, however, the duty of care is identified by statutes.  This is known as statutory duty of care. One example of this can be seen in a local ordinance that mandates all property owners establish separate recycle bins to divide paper, glass, and plastic products for scheduled collections. When standards of care are established by law, the defendant is considered liable for violations of that statute.  In short, once a duty of care has been established, a plaintiff must prove that the defendant fell short of it.

The government report of the Staples recall case stated the office chair was manufactured and imported from China. Once they were made aware of the malfunction issue, the Staples Company, the retailer of the item, took responsibility and implemented swift action by issuing the recall and urged consumers to immediately cease using them. Subsequently, consumers were instructed to contact Staples corporate headquarters for directions on returning the defective product to receive a full refund. The report further substantiates that in addition, Staples directly contacted all known customers in their database to provide them with the recall information.  Staples’s rapid action demonstrated an immediate response to what would be considered a strict liability tort case. They displayed ethically responsible corporate behavior to protect shareholders. In the meantime, to collect any damages incurred from the defective product, the Staples Corporate Legal Department can examine their Risk of Loss Rules and Contracts to determine the next course of action with respect to the Chinese manufacturer that produced it.

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Foreseeability and Proximate Cause

Consumer protection statutes provide safeguards that defend citizens. Bevans (2011) proposes that in addition, a plaintiff may address whether it was foreseeable that their actions would cause harm or injury and whether they suffered as a result (Bevans, 2011). In other words, did the plaintiff use the product in an unsafe manner? This is known as direct causation, in that the injury was sustained from a breach in usage.  In order for a plaintiff to become victorious in a negligence lawsuit, it is essential they prove direct causation.  If, on the other hand, the incident occurred and the consumer was aware from prior events that the product posed certain dangers, then the duty of business changes because of the foreseeability factor. For example, once Staples became aware of the dangers the office chair posed from the many incidents that occurred, the Staples Company, from the eyes of consumer protection agencies, was considered put on notice. This means that the Staples Corporation became aware of the situation and displayed appropriate behavior by taking measures to resolve it. It is then the responsibility of the corporation to implement further measures to ensure higher levels of safety to prevent future occurrences, as well as seek restitution from the Chinese manufacturers that sold the defective product outlined in the terms of their contractual obligations. These are effective strategies to maintain good public relations and trust. In addition, it demonstrates that the Staples Corporation is comprised of an ethical business climate. Had the product not been recalled and further injuries sustained, Staples’s reputation could have suffered. It is clear from their swift action that Staples wanted to protect stakeholders and avoid further injuries that could lead to actions of strict liability torts.

Conclusion

Although recalls can prevent further harm to consumers, retailers, wholesalers and manufacturers are typically held liable for negligence if a product causes injuries. Seaquist (2011) submits that even when negligence has been established, however, a defendant can still avoid tort liability by engaging in one of three defense strategies: (a) contributory negligence, in which the evidence supports that the plaintiff’s actions contributed to their injuries; (b) comparative negligence, where the plaintiff’s negligence is subtracted from the final award; and (c) assumption of risk, where the defendant provides evidence to support the claim that the plaintiff suffered injuries from an activity they were made cognizant of the risk and hazardous conditions it posed (Seaquist, 2012). These defense strategies can serve to limit or completely avoid a defendant’s tort liability and are critical components in the litigation process. In conclusion, the findings of this research determined companies are obligated to abide by duty of care concepts and that in strict liability negligent torts, retailers, wholesalers, and manufacturers are held liable for products that cause consumers harm.

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References

Bevans, N. (2011). Consumer law & protection: A practical approach. Durham, NC: Carolina Academic Press.

Government, U. (2013, July 11). Recalls. Retrieved August 11, 2013, from Cpsc.gov: http://www.cpsc.gov/en/Recalls/Recall-Alerts/2013/Staples-Recalls-Office-Chairs/#Remedy

Marsh, G. (1999). Consumer protection law in a nutshell. St. Paul, MN: West Publishing Co.

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