Employment Laws, Essay Example

Introduction

Identify why the actions in the situation are not in compliance with federal government employment laws. Include in your explanation the legal requirement that is applicable according to the law and develop a policy which includes an approach and action to take guidelines in order to correct the issue to bring the corporation into compliance.

Areas of Law Not in Compliance with Federal Law Regulations:

According to Duch v Jakubek (2009) the employers including management and the owners of the company were not in compliance with the federal government employment laws under Title VII of the Civil Rights Act because of the following acts committed:

It is important to distinguish there is a duty of care owed by management/supervision that is higher than the duty owed by co-workers. The duty does exist by co-workers in certain situations that will be explained further in this project.

“Jakubek replied, ‘That’s good because I don’t want to know what happened,’ and then laughed.” (Simon, 2009). The management is not in compliance with federal regulations because there is a duty of care that exists to ensure there is a safe and harassment free working environment for all employers; this did not exist and further when the supervisor stated she did not want to know what happened she basically turned an eye to the basic fact that an act of harassment had occurred.

• “When Christian asked Duchy whether she wanted her to report Kohn’s behavior, Duchy said ‘absolutely not’. Christian did not report the harassment to anyone. The supervisor had a duty of care to act in Kohn’s best interest and report the harassment. She had a duty of care to determine if there was even a minimal existence of sexual harassment and investigate it to the fullest extent.” (Simon, 2009). This was not in compliance because the supervisor has a higher duty than a co-worker to ensure the workers can perform their work duties in a harassment free environment.
• “Based on this decision, the court found no new rule of liability for employers with relation to harassment reporting, but rather found when a supervisor exhibits ‘purposeful ignorance of the problem of the nature of harassment the employer will not be shielded from any liability under the law of Title VII of the Civil Rights Act.” (Simon, 2009). When a supervisor vicariously fails to report harassment or shows ignorance to a harassment issue, this is negligence and illegal under Title VII of the Civil Rights Act.
• Further it is important to note that even though the supervisor did not actually witness the harassment, was not told of expressly a ‘reasonable jury’ would find the supervisor ‘in the exercise of reasonable care’ she ‘should have known about the harassment.” (Simon, 2009). This legal reasoning is based on the following:
• “She knew Duchy asked for a change in her work schedule when she had to work alone with Kohn” (Simon, 2009)
• She knew of Kohn’s sexual misconduct with other ladies in the past and it did not influence her decision, rather she did not investigate the sexual harassment.
• “She warned Kohn of his conduct toward Duchy by telling him to ‘cut it out and grow up’ and did nothing.” (Simon, 2009). The supervisor acted as though harassment did not occur, instead scolded the victim instead of acting on the illegal act of harassment which is against the Federal Regulations Code.
• She knew when Duchy was forced to work with Kohn she became nervous, tearful, her face became red and flushed, she became emotional and she would lose her composure which was not congruent with her normal personality characteristics.
• She signed off on a schedule change request so that Duchy did not have to work with Kohn any longer. This proved she knew there was friction and yet she took no reasonable action to investigate the possibility of harassment and further told Duchy not to be concerned about it by stating “she did not want to hear about it.” Under the rule of ‘constructive knowledge’ certain facts were obvious to the supervisor where she ‘should have reasonably known’ the existence of harassment and she failed to act on such.

The supervisor had ‘strong suspicion of the sexual harassment and knew it was ongoing’. With that said, she had a ‘duty to discover if the harassment had occurred’. She had to determine if any ‘minimal’ harassment had occurred. With the presence of ‘constructive knowledge of the incidents the management failed to take reasonable steps to stop such harassment.

Things to ponder from analysis of the case:

• Victims of sexual harassment are often in fear to report such harassment because they are afraid to lose their job or afraid of the embarrassment that comes along with such reporting. Research shows it is also common for a victim to confide in a co-worker and ask them to keep the harassment in confidence.
• This case has taught us that this informal reporting to another co-worker triggers the mandating of a co-worker to report the incident to help protect the rights of their friend and co-worker.
• The mandate of a co-worker will depend on their level of authority with the company and how much information is actually revealed to them during the conversation with the victim of harassment.
• It has been established that even if an alleged harassed employee does not make a formal complaint or an express allegation of harassment if there is a presence ‘suggesting any minimal presence of harassment’ there is a duty of management to inquire and investigate the possibility of a claim of harassment. “Further, employers should take reasonable and responsible avenues to ensure effective reporting means are in place and easily accessible for those who wish to report in confidentiality. The company should also have well trained employees to investigate and receive complaints.” (Passarello, 2009).

Similar Case Law

Burlington Industries v Kimberly Ellerth (1998) involved where a Plaintiff felt humiliated and very embarrassed after being harassed by her supervisor at a company that employed her.  “Though she never reported the incident to anyone, the United States Supreme Court ruled “workers can still bring sexual harassment claims against employers even if the harassment is not reported and the victim’s career has not been hurt.” (“HR World Editors”).

Policies of Action to Bring the Company into Compliance within Federal Guidelines:

Summary to bring the company into compliance would be to follow the simple rule of reporting any suspected harassment activities including the minimal suspected harassment even if the employee states they are not being harassed and there are present warning signs that they may be harassed and simply afraid to report such harassment. A supervisor has a duty of care to investigate suspected harassment even to a minimal extent. A supervisor will not be shielded if they express ignorance in this direction. A jury will find with the Plaintiff if they find within the scope of reasonable care the supervisor should have known the existence of the harassment. If there is a presence of constructive knowledge of harassment a jury will infer a supervisor should have known there was a presence of harassment. Constructive knowledge is deemed if one should have known the existence of such presence of such a thing given the circumstances present.

Conclusion

There have been some grave areas of non-compliance in federal policy in this case where supervisors have overlooked harassment in express cases and further choose not to exercise constructive knowledge of sexual harassment. The reporting of sexual harassment is essential to a healthy and safe workplace for all.

References

Passarello, L. (2009) Harsh Reminder: Supervisors Need to Respond Promptly and Effectively to Suspected Sexual Harassment New York: Buchanan Ingersol and Rooney Labor Employment Group, 2009

Simon, E. (2009) Sexual Harassment Victim Wins Important Appeal in Second Circuit Retrieved April 27, 2009 from, http://www.employeerightspost.com/tags/duch-v-jakubek/

Burlington Industries v Kimberly Ellerth (1998) 123 F.3d 490 Title VII of the Civil Rights Act