Harassment and Discrimination

BUS:311 Business Law I
Instructor: Marla Muse
9/26/2013

Many of us who are a part of the workforce wake up every day and think about what needs to be accomplished at work today? Work can be frustrating and sometimes enjoyable, at no point should an individual feel that their security is in jeopardy or also that they are being verbally attacked because of their gender, race, or age. With providing facts this will prove that there the law protects the working force from harassment and discrimination in the workplace.
Most of us who have jobs realize that there are times where either harassment or discrimination takes place. Even in today’s modern world these situations still presents itself. The focus of my argument is to show that these acts do not go unseen or unheard from a legal standpoint. Harassment and discrimination is highly illegal and very unethical within the workplace or any business. There are laws out there that protect individuals who are subjected to this type of behavior, so much so that companies spend a vast amount of time and money trying to educate employees about harassment and discrimination.
My stance on this topic is very clear, these acts should not occur and the law is fair in the consequences that follow when a business is involved in a harassment or discrimination act. I understand that every company cannot speak for each employee; however there should be policies and procedures that are addressed. At no time should an employee not know who to turn to if they feel they have been wronged due to harassment or discrimination. Also employees should be told where to go if they do not understand what the policies are on harassment and discrimination. I am fine with an organization separating themselves from an employee who exercises bad judgment and decides to harass or discriminate someone, if that organization made every attempt to educate and revaluate employees during training. At some point the individual is held accountable for his or her actions.
What is the definition of harassment and discrimination? According to legal dictionary harassment is defined as “The act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands.” Also according to legal dictionary discrimination is defined by “Distinguishing treatment of an individual based on their actual or perceived membership in a certain group or category, "in a way that is worse than the way people are usually treated.” So what is the difference between the two? Harassment focuses more on singling out a group or someone with unwanted behavior such as teasing or unwanted gestures. Discrimination deals with prejudging someone based on their race, gender, or color. Discrimination usually does not follow with excessive verbal abuse or constant unwanted behavior.
Now that both terms have been defined, how does law view harassment or discrimination. What does the law say about what is considered to be lawful or unlawful when dealing with harassment or discrimination. When dealing with both situations it is best to start with the state law and how it perceives both harassment and discrimination. For example, the state of New York breaks down harassment down to verbal or physical harassment; like most states in America we already know that this behavior is unlawful. However each state varies on how the law reads and how the punishment is carried out. In New York there are three types of verbal harassment that carry out a consequence. New York has a first degree and second degree harassment charge. A first degree charge is considered a class B misdemeanor. This charge is brought up if a person is repeatedly harassed by another person. Also if the person being harassed at any point is fearful of their life; under this law an employee can bring up a criminal case against a co-worker is the harassment continues and or if violence occurs. The harasser may be found guilty if he or she directly threatens to make physical harm, or makes other threats which lead the victim to believe physical harm is imminent
The second degree of harassment deals with statements that are intended to harass someone are illegitimate. For example if a co- worker follows another employee taunting them about their weight to the point where the victim is annoyed or feels their wellbeing is in jeopardy. This degree is not considered to be a misdemeanor however a citation may be issued to the harasser if found liable.
The third charge that a harasser may be brought up on in New York is aggravated harassment. This is when a person engages in either first or second degree harassment through the phone or if the harassment is motivated by race, sex, or religion. Each charge carries either a class A misdemeanor or class E misdemeanor depending on the level of degree. State laws may vary from state to state, the main point is that harassment is not tolerated and charge can and will be brought up if someone commits harassment within the work place. Discrimination is also viewed through legal eyes as well. Like most states, discrimination is unlawful and not tolerated. Like harassment, discrimination is viewed and weighted by each state differently. Some states have designed laws specifically for that state to combat discrimination. For example in 1944 the state of Washington developed the Washington Human Rights Commission. This commission was established to make sure that people were treated equally within the workplace. I am not sure if every state has a state commission, however with research it is evident that every state does have mandates about discrimination in the workplace.
States have the ability to establish laws and legislative in regards to harassment and discrimination. After the state law comes the federal law. The federal law also does have legislature in place that discusses each type of behavior. There are several types of harassment laws that the feral government weighs in on. There are laws that federal law have drawn up to coincide with most state laws. There are laws about sexual harassment, age harassment etc. So the government decided to create their own commission.
The EEOC or also known as the Equal Employment Opportunity Commission; It is the job of the EEOC to protect the public by enforcing and regulating laws about harassment and discrimination. The EEOC clearly defines that harassment and discrimination is a direct violation of the 1964 Civil Rights Act title VII. The EEOC was developed also created to hold employers liable for certain acts of harassment and discrimination. The EEOC believes that the employer is liable whether a manager or non-manager if a hostile environment is created through harassment or discrimination. However what makes law fair is that is the employer can prove that they tried to prevent this behavior from happening. When considering allegations of harassment, the EEOC reviews the entire account: this would include the type of the conduct, and the story in which the alleged incidents occurred. Overall A conclusion of whether the harassment is severe enough to be illegal is made on a case-by-case basis.
Besides explaining what harassment and discrimination entails. There have been several cases where individuals have made claims, that they have been subjected to either harassment or discrimination. In the case of Trans World Airlines v. Hardison, Mr. Hardsion who was a hired for a particular shift needed to be available 24 hours a day 365 days a year. He was recently hired and therefore he had to bid for certain shift, however employees with more seniority were able to choose their shifts first. So Hardison was left with remaining shifts that would not allow him to fulfill his religious obligations. He would not be able to work from sunset Friday until sunrise Saturday. Although he had been working there for a little while, he changed departments and that put him on the bottom of the shift bid list. When Hardison refused to work he was let go. The reasoning why he was let go was because of insubordination. Hardison later argued that his employers did not make any legitimate attempts to accommodate his religious beliefs.
So the ruling for this case was in the favor of TWA. Hardison filed suit because he felt that he was discriminated against. However the reason I am using this case is because in business there is more than just someone making a claim. TWA, in the eyes of the court did make enough attempts to accommodate Hardison. TWA did consult with Hardsion about adjusting his shift and therefore there were no discriminatory facts that would lead TWA to be at fault with any religious discriminatory acts. In the end it would have not been fair for TWA to abandon their seniority system to allow Hardsion off and force another employee to work because he or she does not have any religious preferences.
In 1978 a former Los Angeles city employee filed a suit against the Department of Water and Power. She claimed that female employees were asked to make larger contributions towards their pensions than male employees. This is unlawful according to the Civil Rights Act of 1964. The City of Los Angles contended that no such thing occurred to Mrs. Manhart. Everything was based on longevity rather than sex. This case was decided on rather quickly, the court found that Manhart's claim was indeed legitimate. What the court found was that this episode was a direct violation of the 14thAmemndment and sexual discrimination was in play in this case. So the ruling was in favor of Manhart. However in the end the court did rule in favor of repaying Manhart any back payments. The courts felt that here legal and administration fee would be paid by the City of Los Angeles. Although the court did rule in favor of the plaintiff there were no other rulings that went in favor for the plaintiff. This particular case was an example of sexual discrimination and the court found the Department of Water and Power liable for the happenings that occurred with employees and their pensions. At no time should females employees been asked to contribute more because statistics showed that females live longer. The department was in direct violation of civil rights laws, and this was not an example of equal opportunity for both men and female employees for the City of Los Angles.
Thus far religious and sexual harassment and discrimination cases have been discussed. There are other forms of these actions that take place. For example age discrimination is a huge problem in business that occurs frequently. Sometimes companies in the past have been known to demote or fire old employees to hire younger and cheaper workers. Such was case of John Tranetzki. He had been a network administrator for ten years for the City of Milwaukee Health Department. After ten years he had turned 52, and finally he position was eliminated without any real reason. The Health Commissioner felt that the city could hire younger workers to do the work of Mr. Tranetzki and others like him. Tranetzki quickly filed an age discrimination claim with the state Equal Rights Division. Three years later, a judge had found that the city did discriminate against Tranetzki and many others, and then quickly ordered the city to immediately reinstate Mr. Tranetzki old job.
Also the city was ordered to pay Tranetzki back pay to offset a lower paying job he took when his original position was eliminated. This case was easy to prove because the City of Milwaukee was in direct violation of The Age Discrimination in Employment Act of 1967, which prohibits businesses to discriminate based on age. What made this easy for the judge in favor of the plaintiff; was because the Health Department of Milwaukee had a pattern of this type of behavior. Also the court reviewed the ages of all the employees that had been replace, and the court found that the replacements were at least 10 to 15 years younger. The city responded by mentioning that Mr. Tranetzki was not let go and that he still had a job. What really did the health department in, were the comments made by the county commissioner. The commissioner made a remark that the city could hire 15 year olds to do the work of our older employees. So in the end the motive was there and the court did not hesitate to find the city of Milwaukee liable for committing age discrimination.
In more recent cases, a chef from a popular California food chain filed a suit claiming that she was subjected to sexual and racial harassment. Keyon Wilson filed suit this year claiming that she was harassed by other employees because of her race and sexual preference. Wilson describes that the work place was incredible hard to work, when there was co-worker blurting out racial and sexual derogatory phrases. Wilson happened to be the only African American and only female in the kitchen, and so she mentions she stood out. After Wilson made a claim to the HR department of Cleo’s restaurant, nothing got better in fact things got worse. It was then Wilson decided to contact the EEOC and also get the state of California by filing a suit against Cleo’s restaurants. Wilson right now is trying to prove that Cleo’s violated the California Fair Employment and Housing Act. This act was created to prohibit harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin. It also mentions that the plaintiff must exhaust every administrative proceeding prior to filing a suit. As of today the case is still being ready to be heard by a California judge. The reason this case is interesting is because the Fair employment Act does not offer protection for certain circumstances. The Cleo chain is trying to fight suit by claiming that Ms. Wilson never made any attempts to report and actions regarding harassment and discrimination.
So with all of these cases and rulings, the question is who ultimately liable. In most cases the company is liable. There situations where the company may not be liable; these cases usually occur when an employee acts outside the parameters of the company. As I mentioned before, companies spend a lot of time and money to educate their employees about harassment and discrimination. Companies cannot be held accountable for every employee that decides to conduct themselves with inappropriate behavior. Therefore companies will disenfranchise themselves from an associate that does not act within the company standard.
Ethics always comes up when dealing with business law. In most of the cases that were described in this paper, most of them there were unethical events that occurred. However sometimes being unethical does not make it illegal. It revolves around how our laws interpret certain actions. Unusually our legal system is good about matching an unethical occurrence and making it illegal because of laws and acts that have been passed. Sometimes this does not happen because there are loop holes in some laws. Going back to the TWA v. Hardison case, TWA may have been able to accommodate Hardison a little bit better. However Hardsion did not win the case because the law stated that the employer must offer some form of accommodation. In TWA’s case they did and it was Hardison’s decision not to accept their terms. So the ethical thing to do was to try to find some solution, but the result was not the one Hardison wanted. In the end the ethics in this case had no role I determining a ruling. This case came down to the law and the only the law. Harassment and discrimination can affect the entire business landscape in many ways. One way is that the company is affected. After a harassment or discrimination case is filed or decided on. There can be a negative reputation that can be derived from a case. For example the restaurant chain Denny’s have had several discrimination cases in the past. I know for fact that some people in my family will not eat at a Denny’s because of the treatment that African Americans have received. There have been times where I thought in the back of my mind I was being discriminated while dining at a Denny’s. Reputations can make or break a company, and whenever the law has to be involved that usually is no good.
There will always be a need for business law; it protects the working force from harassment and discrimination. Harassment and discrimination comes in all different shapes and forms. Either way there is no reason for these behaviors to occur in the workplace. With the help of the Civil Rights Act and other many state laws and commission such as the EEOC. Workers have something to help themselves if they ever feel harassed or discriminated against.

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