Sexual Harassment

Sexual harassment refers to the unwelcome request for sexual favors, advances and any physical or verbal conduct which is sexual especially when it affects a person at his or her work, interferes with the performance, intimidates or leads to an offensive environment of work (Fitzgerald, 2017). The term was created with an aim to end discrimination and harassment against people at their workplaces. However, the meaning of sexual harassment keeps on changing through redefinitions in various legislations and court verdicts.  Furthermore, not every sexual behavior at work amounts to sexual harassment. Some states also have different definitions of sexual harassment which may slightly differ from the general legal meaning.

Investigating Sexual Harassment

Immediately the sexual harassment claims were first made, the human resource manager for Elora Jean & Co. needed to conduct interviews with all the people involved. The interviews would enable the company to record the details about the events and individuals involved. For instance, who was there, any communications that can be traced, or any other documented evidence must be taken seriously. No potential witness should be left out since this is a stage where every detail can turn out to be crucial.

Secondly, the investigative unit should assure all who are involved in the claims that there would be a fair and detailed hearing that will ensure justice. Everyone must be cautioned not to discuss the matters while the investigations are ongoing. During this stage, there is no need not to conclude until the final investigations are completed. Moreover, the accusers need to be assured that the company or anyone will not retaliate upon them and in case of attempted retaliation they should report it immediately.

Thirdly, there needs to be documentation of everything. There should be a timeline for all the events. Facts and quotes from the individuals involved should be recorded. The facts and issues must be made so clear that any other person coming in should be able to use the available information to carry forward with the investigations and still get the correct results. Documenting everything helps protect and justify the final verdict. Finally, the investigators should make the final decision. At this stage, the investigating unit needed to compare and analyse all the evidence gathered.

The process of investigating the case will be critical in defense of the charge at the Equal Employment Opportunity Commission (EEOC) by one of their employee. If the company argues its case well at the EEOC, it may evade the liabilities that come when the commission files a lawsuit on behalf of the victim once it is found guilty of not handling the sexual harassment well.

The Legal Liability for Elora Jean & Co.

The law concerning human resource management requires that an employer is liable for unlawful sexual harassment by supervisors. The standard liability is by two principles. First, the employer should be accountable for the actions of its employees including the supervisors Secondly, the employer has the responsibility to prevent any harassment, and the employees should be encouraged not harm or harass their colleagues. In the case of Burlington Industries versus Ellerth of 1998, the Supreme Court decision held that the employer is always responsible for its supervisor’s harassment in case the acts leads to a reasonable employment action.

However, without proper job action, the employer may escape liability or mitigate the damages through the establishment of an affirmative defense. Such kind of defense needs to involve two elements. First, the company must have exercised notable care to eliminate and promptly correct any harassment actions. The second element is that the employee unreasonably and ineffectively failed to utilize the preventive and corrective opportunity issued by the company.

The sexual harassment policy should have had at least particular elements. The prohibited act need to be clearly explained. There is a need to be an assurance of protection against retaliation to the complaints, a properly defined process, confidentiality, thoroughness, and presence of corrective action in case the investigations justifies the claim. Elora Jean and Co. needed to adhere to these requirements to avoid being charged for sexual harassment at EEOC. The company will be liable for the sexual harassment due to the lack of any policies or procedures regarding sexual harassment. Furthermore, the matter had reached its superior supervisors who were aware of the events but did nothing to prevent or correct the actions of sexual harassments. Elora Jean & Co. can pursue litigation or mediation to save itself from the organizational costs involved in the case.

One of the ways of avoiding the formal EEOC investigations would have been an attempt to resolve the matter by mediating and settling the two complainants. However, despite the parties’ involved reaching resolution through litigation, mediation, or settlement, it is always going to cost the company a lot of resources. Such organizational costs involve paying off the victimized employees, taking care of their medical bills, and paying legal fees and the costs of court sessions. Things can get even worse when the company loses, and it is directed to award the victims compensatory and damage costs. Furthermore, the price awarded to victims of sexual harassment is quite high depending on the amount lost by the complainants due to the incidents.

However, Elora Jean & Co. should consider mediation over litigation while addressing the organizational costs. A lawsuit will fail to help the company in meeting its needs where the first consideration should always be the costs hence making it expensive (Reyes, 2017). Mediation would be a less costly approach. When the company and the complainants encounter each other through court, the working relationship will be destroyed hence threatening the loss of the two employees. Also, the employees who will remain at work will likely take sides over the issue thus destroying the harmony for the company’s workforce.

On the other hand, mediation will enable both parties to achieve their objectives. It allows Elora Jean & Co. and the two female employees to set out their solutions that meet their demands. It will also preserve the confidentiality required for such sensitive cases hence lessening negative career aftermaths. The company will benefit more from mediation as it is less expensive regarding the resources involved such as time spent and monetary costs.

Recent Case Study

A federal court in Dallas awarded $499,000 to three former EmCare workers in a sexual harassment lawsuit filed by EEOC against the physician service provider. The jury which included four men and two women ordered that Gloria Stokes, the former executive assistant be paid $250,000 for punitive damage over claims of sexual harassment by her supervisor who was the chief executive officer (Goldberg, 2014). Also, Bonnie Shaw, a former credentialer at the company and Luke Trahan were also granted $82,000 and $167,000 correspondingly. The two were paid to compensate for the benefits and wages they lost due to reporting and being against a sexually intimidating working environment.

Implications of Civil Rights Act 1991 on Employers

This Act procedurally and substantively amended various statutes enforced by EEOC. It allows parties involved in discrimination dispute to obtain jury trials and recuperate compensatory and punitive compensations in lawsuits involving intentional discriminations (Burgdorf Jr, 1991). With the Act, employers should be ready to pay certain amounts for pain and suffering, future monetary loss, and punitive damages depending on the size of the company.

Recommendations

A charge at the EEOC is not a wish for any company due to the costs and resources involved. Elora Jean and Co. should consider putting the best first impression before answering to the charge. First, the company should take the charge seriously by putting together all the relevant documentation. Ensure the company reviews the paperwork provided by the EEOC and strictly observe the deadlines and request additional time if there is a need. Secondly, the company should guard against retaliation from the accused male supervisor. Since the company does not have an anti-retaliatory policy, the supervisor should be warned against such actions either verbally or in a written letter. 

Thirdly, the company should maintain the confidentiality of the information about the charge. Every staff member involved should only discuss the matter with the human resource director or another coordinator of the investigations. Finally, it is important to inform the insurer in case such claims were insured. Failure to do so may lead to the insurer denying to cover for the damages.

Anxiety and Depression under Americans with Disabilities (ADA) Policy

The ADA policy requires that an employer provides reasonable accommodation to deserving employees with disabilities unless such accommodation causes undue hardship. The provision of reasonable accommodation is an indispensable lawful obligation due to the type of the discrimination the people with disabilities experience (Spechler, 2017). Undue hardship is the statutory restriction on the company’s duty to offer reasonable accommodation. It is the difficulty of resources and circumstances involved in fulfilling reasonable accommodation for employees.

The two concepts apply to Elora Jean and Co. because of the employee suffering from depression and anxiety. In as much as the two conditions are considered as disabilities, they can make the employee face discrimination hence she requires reasonable accommodation. The employee should be given time off in case she needs to see a therapist even on a working day. A change in work environment, maybe from one branch to another may help reduce unnecessary distractions.

The Americans with Disabilities Amendments Act of 2008 means that employers will have to consider key elements such as consistency, documentation, objectivity and timeliness of handling claims as they review their present procedures for allowing or disallowing disability claims. The Act requires employers to reevaluate the policy and method of determining reasonable accommodations.

The elements such as employee’s safety and facilities within the organisation should be the top priorities that a policy addressing the Americans with Disabilities Act need to express. Employees should know their rights as well as actions to take whenever the employer violates the rights. Therefore, the Act can benefit both parties by consolidating the terms of employment.

References

Burgdorf Jr, R. L. (1991). The Americans with Disabilities Act: Analysis and implications of a second-generation civil rights statute. Harv. CR-CLL Rev., 26, 413.

Fitzgerald, L. F., & Cortina, L. M. (2017). Sexual Harassment in Work Organizations: A View from the Twenty-First Century. APA Handbook of the Psychology of Women. APA. Available at http://www.apa.org/pubs/books/4311534.aspx.

Goldberg, S. (2014, October 27). Dallas Company to pay $499,000 for sexual harassment, retaliation firings. Retrieved November 7, 2018, from             https://www.businessinsurance.com/article/20141027/NEWS07/141029823

Reyes, A. (2017). The Business of International Dispute Resolution. J. Int'l & Comp. L., 4, 69.

Spechler, J. (2017). Reasonable accommodation: Profitable compliance with the Americans with Disabilities Act. Routledge.