Inappropriate Behavior in the Workplace

Inappropriate Behavior
What civil rights laws may prohibit Marwan’s conduct with his fellow co-worker? “The definition of sexual harassment stated in the EEOC Guidelines and accepted by the U.S. Supreme Court is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,” which implicitly or explicitly make submission a term or condition of employment; make employment decisions related to the individual dependent on submission to or rejection of such conduct, or have the purpose or effect of creating an intimidating, hostile, or offensive environment (Kubasek, 2009, p. 600).” Do those laws apply to his conduct toward the park guest?

Yes, they do insomuch as his unwanted sexual advances created an “intimidating, hostile, or offensive environment (Kubasek, 2009, p. 600).” Sexual harassment can be claimed by someone other than the person being harassed, and “…could be anyone affected by the offensive conduct (EEOC, nd).” When investigating charges of sexual harassment, the EEOC takes circumstances and context into account and therefore a well-documented pattern of behavior will aid a case against an abusive employee, whoever the abuse is directed at (EEOC, nd). Sexual harassment laws view the incident from the mindset of the victim, not the harasser, and therefore the attention being intended as complimentary rather than offensive is an invalid defense. In Ellison v. Brady (9th Circuit Court of Appeals, 1991), the court rejected the ‘reasonable person’ standard as being male-biased and found that “if a "reasonable woman" would find the conduct severe and pervasive enough to alter the terms and conditions of employment such that an offensive environment was created, then sexual harassment can be found (Schickman, nd).” However, since the employee is not in a position of authority over the park guests, he may not be liable for creating a hostile or intimidating environment even though there was unwanted physical contact. In LeGrand v. Area Resources for Community and Human Services, an employee accused someone in the employ of his same employer but who was not associated directly with the plaintiff of sexual harassment and creating a hostile environment. Although the accused’s actions were found to range “from crass to churlish and were manifestly inappropriate (8th Circuit Court of Appeals, 2004)”, they were deemed non-actionable hostile work environment sexual harassment. Did Marwan commit sexual harassment?

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Yes he did in that he made unwanted sexual advances and verbal and physical conduct of a sexual nature (EEOC, nd). The law does not prohibit isolated incidents that aren’t very serious (EEOC, nd), the pattern set by the employee of offensive and abusive behavior does qualify as a crime under sexual harassment law. When investigating a case of sexual harassment, the Equal Employment Opportunity Commission will take all circumstances into account and evaluate on a case-by-case basis. Given the employee’s behavior towards multiple females, employees and non-employees, and the repeated abuse of whatever authority the employee believes is held over customers and coworkers, it seems reasonable that in this case the EEOC would find evidence of illegal sexual harassment (EEOC, nd). If so, what type?

By stating that he could have his coworker fired he was committing quid pro quo sexual harassment, in which he gave his coworker reason to believe that her continued employment was contingent on consenting to his advances (Kubasek, 2009). He was also creating an intimidating, offensive and hostile work environment (Kubasek, 2009), in that he was attempting to use his questionable authority over his coworker in order to coerce his coworker into intimate relations and in stating that if she did not consent he would have her fired. In Henson v. Dundee, the court found that, “Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets (9th Circuit Court of Appeals, 1982).” What is the legal nature of Marwan’s employment?

The nature of the employment is most likely ‘at will’, in which the employer and employee are free at any time to terminate the employment (Kubasek, 2009). If the employment manual laid out grounds for termination and did not include ‘at will’, there is a possibility that a court would rule that the
employee reasonably took the printed manual at face value, although in this particular case the employer would be able to counter with misconduct which is also assumed to be in said manual under just cause for termination (Kubasek, 2009). What actions and steps should Studio Five take against Marwan? In Harris v. Forklift Systems, Inc., the court determined that circumstances were to be taken into account when determining whether a work environment was made hostile or abusive and some of those circumstances were the frequency, the severity, and the physical or verbal nature of the harassment (Kubasek, 2009). Given that the employee’s conduct in this situation met all of those criteria in that it was frequent, threatening and physical, discipline should not be considered and the employment should be immediately terminated.

Explain what actions you considered and why you either recommend or reject them. Given the severity of the employee’s actions I do not recommend intervention in the form of discipline or counseling. Repeat offenses and the attempted intimidation of a coworker are a pattern of behavior that cannot be excused and the customers as well as the coworkers who were touched and spoken to inappropriately should bring suit against the individual, if for no other reason than to establish a record of the behavior that in the future may be used as evidence should it be demonstrated in another workplace in the future. Discuss Marwan’s allegation that he is being discriminated against based on his disability and what response Studio Five may have to that allegation. Given the fact that the employer was unaware of his disability and the fact that the firing was on grounds of misconduct, not poor job performance, this will be a difficult charge for the employee to prove. The employer has grounds to terminate the employee based on his sexual harassment of customers and coworkers, and there is little evidence of a mixed motives case based on the employee’s disability, which was an unknown factor and not interfering with his job performance (Kubasek, 2009). The Americans with Disabilities Act of 1991 requires employers to not discriminate against the disabled “in any aspect of the employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment (EEOC, nd).” The employee did not bring his disability to the employer’s attention nor did he request or need accommodations and the employer can easily prove that the disability was not
a factor in the grounds for termination. What would each of them have to prove in court?

The employee would have to prove that his disability was a factor in his termination, which will be difficult based on the fact that his termination was due to misconduct, not poor job performance. The employer will have to prove that his disability was not a factor in his termination, which was reasonably based on evidence from customer and coworkers of his misconduct and will not be difficult. “§ 2000e-5(g)(2)(B) requires an employer to “demonstrate that [it] would have taken the same action in the absence of the impermissible motivating factor” in order to take advantage of the partial affirmative defense (Kubasek, 2009, p. 606)” and the employer can easily prove in court that they would have fired the employee based on misconduct alone. If the female employee sues Studio Five Theme Park, what defenses can Studio Five use? The employer can use ignorance of the situation as a defense, as well as their swift handling of the situation once it was brought to their attention. Although precedence has been set for liability regardless of knowledge in quid pro quo sexual harassment cases, on the grounds of a hostile work environment pleading ignorance may be an effective defense strategy (Kubasek, 2009). In Faragher v. City of Boca Raton (11th Circuit Court of Appeals, 1997), it was found that, “An employer is directly liable for hostile environment sexual harassment if it knew, or upon reasonably diligent inquiry should have known, of the harassment and failed to take immediate and appropriate corrective action.” In this case the employee committing the misconduct was terminated as soon as the action was brought to the employer’s attention by a coworker complaint. His behavior in the past had not been reported and therefore the company is most likely not liable.

However, this defense may be more or less effective depending on the company’s sexual harassment policy; in one finding the court ruled that, “…we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination … must insulate petitioner from liability. … Petitioner's general nondiscrimination policy did not address sexual harassment in particular, and thus did not alert employees to their employer's interest in correcting that form of discrimination. Moreover, the bank's grievance procedure apparently required an employee to complain first to her supervisor. Since [the supervisor] was the alleged perpetrator, it is not altogether surprising that respondent failed to invoke the procedure and report her grievance to him. Petitioner's contention that respondent's failure should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward. (U.S. Supreme Court, 1986).” Are they liable for Marwan’s conduct even if they were unaware of and did not approve of Marwan's actions? This is a confusing point in legal terms. Quid pro quo cases tend to not rely on the company’s knowledge of the situation, although hostile environment cases do (Kubasek, 2009), so the two charges may be settled separately if both are brought against the company for the employee’s behavior. In one case an employer was determined to not be liable for an employee’s offensive behavior because it took immediate corrective action. “…a finding of hostile environment will not result in vicarious liability if the employer can prove that it "exercised reasonable care to prevent and correct promptly any sexual harassment, and... the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise…(5th Circuit Court of Appeals, 2000).” However, in another case the Court of Appeals found that an employer is liable for the behavior of a supervisory employee whether or not the company was aware of the behavior. “The court held that a supervisor is an "agent" of his employer for Title VII purposes, even if he lacks authority to hire, fire, or promote, since "the mere existence -- or even the appearance -- of a significant degree of influence in vital job decisions gives any supervisor the opportunity to impose on employees (U.S. Supreme Court, 1986).” That being said, the Supreme Court also stated in the same ruling that, “As to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case (U.S. Supreme Court, 1986).”

If Marwan was a member of a union that had a collective bargaining agreement with Studio Five, would that change any of your previous answers? If the employee was a member of a union they most likely have strict misconduct policies in place, and the employee would have to refer to the union rules and regulations to determine if there was a case against termination under the circumstances. However, most workplaces and unions have strict no tolerance policies against sexual harassment and the chances of the employee having a reasonable case are slim. The investigative process on the employer’s part would be much more complex if the employee is a member of a group with a collective bargaining agreement. Some of the recommended steps in such a case include identifying the nature of the complaint, determining whether an investigation is warranted, determining who should conduct the investigation (if charges are criminal or civil), and after conducting the investigation determining reasonable discipline and reporting decisions to the appropriate parties. The investigation itself must be handled differently in cases of union members being involved; for instance, a union representative may be present during interviews, even if the accused employee declines union representation (Comstock, Barrett, 2007). What types of company policies, procedures, and actions should businesses employ to avoid harassment of their employees?

According to federal law, an employer has met their obligations regarding sexual harassment in the workplace if they take all reasonable steps to prevent harassment from occurring, and take reasonable action once it has occurred (Schickman, nd). One of the steps possible to prevent sexual harassment from occurring is to post the company’s sexual harassment policy, which should include information such as: a statement of the policy, definition of sexual harassment, non-retaliation policy, specific procedures for prevention, a transparent investigation and remediation procedure, reporting procedure and timely reporting requirements (Schickman, nd). References

Casiano v. AT;T (6/12/00), 5th Circuit Court of Appeals, No. 99-50992 http://www.plainsite.org/flashlight/case.html?id=1288386
Comstock, Theodore, Barrett, Christina (10/07) Investigating Allegations of Employee Misconduct, New Hampshire School Boards Association
http://www.nhsba.org/documents/InvestigatingComplaintsofEmployeeMisconduct.pdf Faragher v. City of Boca Raton (6/26/98), U.S. Supreme Court No. 97-282 http://www.law.cornell.edu/supct/html/97-282.ZO.html

Henson v. Dundee (1982), 11th Circuit Court of Appeals, No.80-8527
http://openjurist.org/682/f2d/897/henson-v-city-of-dundee
Kubasek, Nancy (2009), Legal Environment of Business (5th ed). Pearson Learning Solutions,
http://digitalbookshelf.argosy.edu/books/0558228925/id
LeGrand v. Area Resources for Community and Health Services (11/15/04), 8th Circuit Court of Appeals, No. 04-1284
http://www.leagle.com/decision/20051492394F3d1098_11372
Meritor Savings Bank v. Vinson, (6/19/86), U.S. Supreme Court No. 84-1979
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0477_0057_ZO.html Schickman, Mark (nd) Sexual Harassment: The Employer’s Role in Prevention - General Practice, Solo ; Small Firm Division Technology ; Practice Guide, American Bar Association http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/w96shi.html United States Equal Employment Opportunity Commission (nd)

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