Harassment proscribed under law includes ‘unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature’ (US Equal Employment Opportunity Commission, n.d.a.).
Marwan’s actions against his co-worker involved an unwelcome sexual advance. Title VII of the US Civil Rights Act prohibits Marwan’s conduct with his fellow worker.
Applicability to Park Guests
According to the US Equal Opportunity Commission, the culpability of being tried under Title VII of the United States Civil Rights Act of 1964 for sexual harassment is extended to the victim’s supervisor, a different supervisor in the firm, a co-worker, or even someone who is not an employee of the employer, such as a client or customer (US Equal Employment Opportunity Commission, n.d.a.)
The park guests, while not being employees or employers in the Park, nevertheless are part of the work environment of Marwan. Therefore, the charge of sexual harassment is applicable to Marwan for his actions against the park guests.
Whether Marwan Committed Sexual Harassment
There are two types of sexual harassment – quid pro quo sexual harassment and hostile environment sexual harassment. Quid pro quo sexual harassment occurs when an employee is forced to perform a sexually offensive act under threat of promotion or to keep the job in the workplace. A hostile environment sexual harassment occurs when a co-worker or supervisor makes sexual advances that, while not linked to promotion or continued employment, nevertheless lead to an adverse work environment for the employee (Legal Match, n.d.).
When Marwan inappropriately touched his co-worker, he was guilty of hostile environment sexual harassment, as his actions made the work environment inimical to his co-worker. When Marwan threatened his co-worker that he would get her fired if she did not go on a date with him, he was guilty of quid pro quo sexual harassment as he linked the co-worker’s employment to the satisfaction of his desire of going out on a date with her.
Legal Nature of Marwan’s Employment
Employment contracts are agreements between employers and employees regarding the terms of employment. As such, employment contracts may be written, oral or implied. While written contracts have employment terms terms set in writing, oral contracts are verbally made between employer and employee. Implied contracts are not written, nor stated explicitly in oral fashion, but are implied on the basis of the employer’s actions and statements (Nolo, n.d.b.).
Unless specified otherwise, employment in the USA is deemed to be ‘at will’, implying that the employee is free to join the firm and also leave it at his own free will. A similar privilege extends to the employer; the employer can also hire and fire the employee at will, unless there is a clause mentioning otherwise in the employee contract, whether written or not. The clause of ‘at will’ employment gets modified in situations where the employee carries out an inimical act which the employer needs to take action on legally, such as financial malfeasance or sexual harassment (Nolo, n.d.b.).
Marwan does not have a written employment contract. It is likely that he has an oral contract, as the park owner would have invited him to perform the role of a swash-buckling pirate. While Marwan has served in the park for a long time, there is nothing in his contract, whether written, oral or implied, which indicates any restriction on the park management to terminate his services. Therefore, it is safe to assume that Marwan is employed on an oral, at-will contract.
Recommended Actions by Studio Five
Once the co-worker complained about sexual harassment, Studio Five required to quickly investigate the matter. Time is of an essence in cases relating to sexual harassment, and cases need to be examined with empathy and sensitivity. If a sexual harassment case is not handled properly, the employee might be forced to leave the organization without redress and leave the organization guilty in the eyes of a tribunal.
When following up either a formal or informal procedure, the firm must take into account the seriousness of the allegation of the incident. In the case in point, Marwan has allegedly made a serious violation. The potential effect if repeated is to be considered. If Marwan repeats his behavior, Studio Five would become a pariah in the entertainment industry and not get any further business. It also needs to be considered whether the harasser is in a position of trust or responsibility. In the instant case, Marwan is given carte blanche to deal with visitors in his role as pirate. Given that Marwan was entrusted with a position of independence, his actions are deserving of increased penalty. The fact that Marwan has made similar advances with guests to the park needs to be taken into cognizance (US Equal Employment Opportunity Commission, 2006)
The options for Studio Five are: -
- Option One. Give Marwan a warning, considering that he is a longstanding member of Studio Five. This option is not considered appropriate, as Marwan has proven to be a repeat offender. His actions with the guests who visit Studio Five are bound to put Studio Five in bad light.
- Option Two. Take Marwan to court and press charges against him. This option is likely to be tie consuming. Also, the proof against Marwan is likely to be inconclusive, as it would only be the word of one person against another.
- Option Three. Relieve Marwan of his job. This is the most plausible course of action. Marwan’s job contract is oral and at-will. Therefore, Studio Five is at liberty to relieve Marwan of his services.
Given the pros and cons of various options, Studio Five deems it appropriate to relieve Marwan of his job.
Marwan’s Allegation of Discrimination Based on Disability
Marwan has a prosthetic leg. The assessment of whether a person has a disability is made ‘without regard to reasonable modifications, auxiliary aids or medication’ (US Equal Employment Opportunity Commission, n.d.b.) Therefore, even though his prosthetic leg does not hamper his activity, Marwan would qualify as being disabled under the provisions of the Disabilities Act.
Once Marwan was relieved of his job at Studio Five, he would be at liberty to sue Studio Five on the grounds that Studio Five had thrown him out of his job due to his disability (US Equal Employment Opportunity Commission, 2005).
On his part, Marwan would have to prove that he has been thrown out of his job because of his disability. Marwan might allege that he missed his step due to pain in his prosthetic foot and had to grab the female co-worker for support. He might say that while he was sorry that his fall resulted in an inappropriate touch, it was not his intention. Alternatively, Marwan could argue that Studio Five was looking for an opportunity to remove him from the job as his disability was making him move with increasing difficulty, and that Studio Five considered him a liability. Studio Five would need to counter such arguments from Marwan. The female co-worker would need to testify that Marwan had not slipped or fallen, and that indeed his action was deliberate. Studio Five would have to prove that it had thrown out Marwan due to actions regarding sexual harassment.
Actions if Female Employee Sues Studio Five
As per Title VII of the United States Civil Rights Act of 1964, the employer’s liability in a sexual harassment case would depend upon the status of the harasser. If the person accused of harassing a co-worker is a supervisor and the supervisor’s sexual harassment results in a change in the employment status of the concerned employee, the employer is liable of being charged in a court of law. If no tangible employment related action is taken in such a case, the employer has an option to plead that all necessary steps were taken to correct the concerned sexually harassing behavior, and that the affected employee may not have taken due steps to approach the employer for help. If the harassing employee is a co-worker, the employer is liable to the extent of negligence in controlling the working conditions (Vince vs Ball State University, 2012).
In the case of Marwan, it would need to be noted that Marwan is not a supervisor. He is an old hand in the Studio, and is likely to gain informal standing in the Studio due to his age. Therefore, technically, Marwan is not a supervisor and Studio Five is not liable for actions taken by Marwan from the point of view of him being a supervisor. Studio Five can also contend that when they did come to know of the actions of Marwan, they relieved him of his services.
However, Studio Five would be culpable to the extent that it did not do enough to create an environment where Marwan would find it imprudent to engage in sexual harassment. While Studio Five may enter the plea that it is a creative venture and must leave Marwan to follow his lodestar, the fact that Studio Five tended to give Marwan a carte blanche to carry out his act would go against Studio Five. Therefore, if the woman worker sues Studio Five, its liability would be limited to the extent that it did not create adequate conditions to prevent one worker from sexually harassing his co-worker.
In case of a suit by the female employee, Studio Five would need to prove that it had adequate checks and balances in place to prevent sexual harassment in its workplace. In this regard, it would be prudent to have written instructions for employees in place. If instructions were in place, Studio Five could enter the plea that while it had made all efforts to prevent sexual harassment in the workplace, it could not practically stop anyone from carrying out the said harassment. Therefore, any case of culpability for sexual harassment would need to be viewed in this light.
Notwithstanding, Studio Five’s liability to the extent as mentioned above exists even if Studio Five was not initially aware of Marwan’s misconduct.
Membership of a Union
Sexual harassment in the workplace is an issue that trade unions are concerned with. It is in their charter to educate their members to avoid becoming victims of sexual harassment (International Trade Union Confederation, 2008).
Unions invariably would include an article regarding sexual harassment in the collective bargaining agreements with employers. They would have in place an agreed-upon procedure about how to deal with such cases. They would ensure that employers carry out their investigations in a timely manner and that actions are taken without delay. Unions would be interested in ensuring that employers ensure that harassment does not occur again in the workplace (International Trade Union Confederation, 2008, p. 8).
If Marwan were to be a member of a trade union, the union would interact with Studio Five based on laid down procedures and insist that his case be investigated impartially and fairly. The union would be interested in ensuring that Marwan is not unfairly implicated, and that he is not being thrown out as a result of discrimination regarding his disability.
If the investigation by Studio Five reveals that Marwan is guilty of sexual harassment, the union would not support Marwan any longer, as the union would abide by its canon of standing against sexual harassment for the protection of its members.
Company Policies, Procedures and Actions to Avoid Harassment of Employees
The ultimate responsibility to ensure that sexual harassment does not take place in the workplace lies with the employers. Therefore, it is incumbent that companies have in place explicit policies and procedures to avoid sexual harassment of employees.
Companies must have in place explicit policies denouncing sexual harassment in the workplace. Such a policy would serve to guide all concerned in the event a case of sexual harassment takes place. The policy must be well publicized and made available to all employees.
A policy on sexual harassment should include a vision statement indicating the company’s commitment to keep sexual harassment out of the workplace. A statement of rights and obligations would need to be mentioned. The definition of sexual harassment as laid down in Title VII of the United States Civil Rights Act of 1964 and mentioned by the US Equal Employment Opportunity Commission must be made explicit. Descriptions of unacceptable behavior should be included in the context of the workplace. The company must clearly mention the procedure to be followed on occurrence of sexual harassment. The policy should clearly indicate the person to whom an employee would complain to in case of sexual harassment. Such a person should ideally have the necessary background, sensitivity and expertise to deal with sexual harassment cases. The company must assure employees that all cases would be handled with confidentiality and that any complainant would be protected from reprisals and threats. Dispute resolution mechanisms that would investigate cases of sexual harassment should be mentioned. The company should explore the possibility of mediation. The policy should clarify the modality of investigation of a complaint of sexual harassment and also indicate the time involved to deal with such cases. The company should also mention the steps that would be taken if it were not to be appropriate for a complainant to continue working with another person. The policy should enumerate the actions to be taken by the company if the harasser is unknown, as in cases of cyber harassment. In situations where cases of sexual harassment are proven, the company policy should mention what disciplinary actions it would take. The company may endorse details of compensation to the victim (Ontario Human Rights Commission, n.d.).
Apart from laying down a clear policy, the company must train and educate its workforce on the nuances of sexual harassment. A talk by an expert may be organized to clarify doubts in the minds of the workers.
Procedure for Handling Complaints
The company must handle cases of sexual harassment in accordance with laid down policy. The company must handle all cases expeditiously and with confidentiality. The nominated staff who handle such cases must be well trained and possess due sensitivity and maturity. The company must provide support to the complainant, the alleged harasser and to the manager handling the complaint. In the interest of natural justice, no one should be deemed guilty unless proven so (US Equal Employment Opportunity Commission, 2006).
Before deciding on the appropriate procedure to deal with a case of sexual harassment, the company would need to determine the extent and seriousness of the allegation. The company would need clarity on what the complainant’s wishes are and what the complainant expects the complaint to achieve. The company also needs to determine if the incident is a repetitive in nature (US Equal Employment Opportunity Commission, 2006).
The company can deal with cases of sexual harassment formally or informally. The company should follow the informal route if the complainant does not wish to formally press charges. In such a case, the powers of investigation and action by the company become restricted. The company should apprise the complainant of this fact so that the complainant can take the necessary decision (US Equal Employment Opportunity Commission, 2006).
Informal Procedure. If the company deals with a case informally, it should ideally complete the case within two weeks. It should establish the facts from the complainant’s viewpoint. It should make it clear to the complainant that the allegation is being treated informally. The company should put forth the allegations to the alleged harasser and keep a record of what was said with due confidentiality. Having recorded statements from the complainant and the alleged harasser, the company should consider steps necessary to provide justice. The company should speak to witnesses or other parties after apprising them of the need to maintain confidentiality. The company should evaluate the findings and advise the parties of the proposed outcome (US Equal Employment Opportunity Commission, 2006).
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Legal Match. (n.d.). What are the two types of sexual harassment? Retrieved 07 Nov 2014, from http://www.legalmatch.com/law-library/article/types-of-sexual-harassment.html
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Nolo. (n.d.b.) Types of employment contracts. Retrieved 07 Nov 2014, from http://www.nolo.com/legal-encyclopedia/types-employment-contracts.html
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US Equal Employment Opportunity Commission. (n.d.b.). Notice concerning the Americans with Disabilities Act (ADA) Amendments Act of 2008. Retrieved 08 Nov 2014, from http://www.eeoc.gov/laws/statutes/adaaa_notice.cfm
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Vince vs Ball State University, 11-556 (2012). Opinion issued by the US Supreme Court.