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Sexual harassment final paper: Ashford university

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Running Header: WORKPLACE SEXUAL HARASSMENT
Workplace Sexual Harassment
BUS670 Legal Environment
Professor Foster
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WORKPLACE SEXUAL HARASSMENT
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Introduction
Sexual harassment has been around forever, and there are many different forms of sexual
harassment. Sexual harassment of any form always hurts one or more people, even the ones who
aren’t directly involved. Sexual harassment laws have evolved because businesses and the government have become more focused on issues that cause disruptions within the workplace. The
author will achieve this by analyzing and explaining to the reader that sexual harassment is prevalent and preventable when people speak up and stick together. The author will analyze a sexual
harassment case and then will apply this case to several different ethical theories. After that, the
author will then apply all the laws that relate to sexual harassment and explain how the laws
were broken within this workplace sexual harassment case. Afterward, the author will inform the
reader on ways businesses can limit the liability in sexual harassment claims.
Business Situation
The business situation that will be described is a current case regarding a justice for the
state of New York and one of the lawyers that worked under that justice (Wang, 2019). The lawyer’s name is Alexis Marquez, and the justice’s name is Justice Hoffman (Wang, 2019). Alexis
had been working for Justice Hoffman since 2017, and the harassment began as soon as she was
hired. At first, Justice Hoffman asked Ms. Marquez to eat lunch with him, and then evolved into
asking her to sit closer to him (Wang, 2019). After weeks of that the justice started to “talk to her
about cases that involved pornographic film stars and extramarital affairs, and theses cases had
nothing to do with their current work” (Wang, 2019, P. 5). Ms. Marquez also stated that the justice asked her to take off her jacket at least once, but she refused (Wang, 2019). The justice contacted Ms. Marquez on weekends and through personal communications like her e-mail (Wang,
2019). When she asked the justice to stop contacting her on the weekends and through personal
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communication channels, the justice did not respond (Wang, 2019). When Ms. Marquez came
into work the following week, the justice told Ms. Marquez that she was rude and to transfer to
another office (Wang, 2019). During the court trials, Ms. Marquez stated that before the judge
ever told her that she needed to transfer, she had been “interviewing with another judge in the
courthouse and telling court officials why she needed to move. But those officials ignored or
avoided her” (Wang, 2019, P. 7). When she got transferred to a different office within the state,
the state human resource department sent her a letter telling her she no longer had a job (Wang,
2019). After that, she filed a lawsuit against “The State of New York on the grounds of sexual
harassment made by Justice Hoffman, and also retaliation and discrimination by New York
State, and its Unified Court System” (Wang, 2019, P. 15). Now that the sexual harassment situation has been explained, lets apply some theories to this situation.
Ethical Theories
Ethics is a huge area to dive into, and the ethics regarding workplace harassment can
make a person go crazy. There are many different ethical theories, and within this section, the
author will be discussing two ethical theories. Below, the two ethical theories will be applied to
the sexual harassment situation that was described above. The ethical theories that will be applied are ethical absolutism and virtue ethics. Both of these ethical theories will be explained, applied, and discussed. In both analyses, there will be different outcomes for each theory because
both theories see ethics differently. The author will then choose the best ethical theory for this
specific situation that leads to the best outcome for future employees. The first ethics that we will
talk about will be ethical absolutism.
Ethics comes in many different theories, and the author will discuss ethical absolutism.
An example of ethical absolutism is when a company chooses to lie regarding advertising on a
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product. Ethical absolutism has a universal moral standard and says that if the universal moral
standard is broken or obeyed, then that would be ethical absolutism (Seaquist, 2019). To explain
further, we must establish what the universal moral standard is. Universal moral standards are a
few standards that are more or less hardwired into everyone at birth. The Journal of Business
Ethics established seven “universal moral values for corporate codes of ethics and they are trustworthiness, respect, responsibility, fairness, caring, and citizenship” (Schwartz, 2005, P.1). This
means that there are universal right and wrong decisions based on these values, no matter the
reason. By using the example above, we can say that any form of sexual advance that is unwarranted is disrespectful and breaking the trust of the person who did not want the advance. This
unwanted sexual advance would be classified as sexual harassment, and sexual harassment is unethical in this kind of ethical theory. If Ms. Marquez had asked the judge for the sexual advances,
then that would not be breaking any ethical issues, and it would not be considered sexual harassment because the advances were wanted. The justice choosing to ask or force himself onto Ms.
Marquez breaks the trust she may have had with the justice. The responsibility the justice had to
treat Ms. Marquez with respect, fairness, and caring are all moral choices he should have chosen
rather than disrespecting her and taking advantage of her as her boss (Hersch, 2018). For example, in this circumstance, the justice talked about his previous cases involving pornographic film
stars and extramarital affairs. This is unethical because the cases they were working on had nothing to do with either topic. Therefore, the conversation was inappropriate, ethically disrespectful
and uncaring for Ms. Marquez’s thoughts about the topic because he did not consult her before
he chose to talk about that topic. The justice should have asked to talk about these cases, and the
justice should have cared about what Ms. Marquez’s thoughts on the topic were before talking to
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her about them, especially when the cases had nothing to do with the current cases they were
working on.
Now that there is an understanding of how to apply ethical absolutism to this situation,
now look at what kind of outcome would come from this situation if the justice had made good
ethical choices using the theory of ethical absolution. There are seven universal moral values,
which are trustworthiness, respect, responsibility, fairness, caring, and citizenship (Hemel &
Lund, 2018). Trustworthiness can not really be applied to the judge's situation unless we state
that the justice should have done actions to gain Ms. Marquez's trust and not make her uncomfortable and scared to work with him (Hemel & Lund, 2018). The justice should have respected
Ms. Marquez's decisions to not receive communication on weekends and personal lines of communication. The justice did not respect Ms. Marquez when he berated Ms. Marquez's right to say
no when she did not take off her clothes when he asked her to do so and she told him not to email her on weekends by using personal lines of communication. Lastly, the justice did not respect Ms. Marquez when she told the judge that she was looking for a new job. All of these were
issues with respect because the justice did not respect Ms. Marquez’s personal decisions. Ms.
Marquez got a new job within the courthouse after "interviewing with another judge in the courthouse and telling court officials why she needed to move, those officials ignored or avoided her"
(Wang, 2019, P. 7). None of the justices or authorities were fair toward Ms. Marquez and she
was ignored and then after she had done what the justice asked she got fired because of how unfair the justice was towards Ms. Marquez. Caring, if the justice was caring towards Ms. Marquez
her thoughts and decisions would not have caused the justice to berate her and treat her like he
did. To look back on the justice's decisions, he should have understood why Ms. Marquez did not
want the job and should have let her transfer without the repercussion of losing her job.
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Now that ethical absolutism has been applied to the above situation, lets now analyze virtue ethics. Virtue ethics “looks at the basic values one needs to develop to have a good moral
character” (Seaquist, 2019, sec. 4.1). First, we must define what a good moral character is, and
that is a “character which measures up to the standards of an average citizen of the community”
(Suotmaa, 2018, p.1). Based on that definition of a standard citizen, the author can say that a
standard citizen would not talk about sexual cases around other people unless it was directly relevant to their job. A good moral character would not force someone to do something they did not
want to do as the justice did in the situation above by telling Ms. Marquez to take her jacket off
when she did not want to. In the situation, Ms. Marquez was told to do several things that she did
not want to do, like sit closer to the justice, eat lunch with the justice, take off clothing that she
wanted to keep on. All of these instances are a form of unethical decisions based on the justice
not being a good moral character. When we look at the same situation with the justice making
good moral character decisions, we can say without a doubt the justice should not have made the
same choices he had made above. Had the justice made decisions with virtue ethics in mind the
justice would not say anything to Ms. Marquez unless it had something to do with the job. By
letting Ms. Marquez do her job, the justice would not have any reason to bring up cases that have
nothing to do with their current cases. This would be the outcome of virtue ethics.
Looking at outcomes, virtue ethics would allow for a different outcome of the justice’s
action compared to that of ethical absolutism. In applying virtue ethics, we would say that for the
greater good, Ms. Marquez should have filed a lawsuit for sexual harassment sooner than when
she did. By doing that, she would have possibly lost her job sooner, but because we believe Ms.
Marquez was acting as a moral character the action to turn in her boss would be ethically correct
in protecting future employees from sexual harassment by the justice. When the actions of Ms.
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Marquez are looked at under ethical absolutism, she would not turn the justice in or take any retaliation against the justice because Ms. Marquez would be showing values like respect towards
the justice, even when he did not show her any respect. In this instance the author believes that
even thought Ms. Marquez would possibly lose her job sooner then she already had, that virtue
ethics would show the best outcome. This would show others, that would apply to the job that
they could have a sexual harassment issue. By turning in this justice this would save future employees from this work situation or even get the justice fired. To keep sexual harassment away
from this company virtue ethics is the best theory for this situation.
Laws That are Contained Within the Situation
Torts Law
Torts law is around to help people or groups of people that have been wronged or hurt by
others to receive reparations from liable parties (Seaquist, 2019). Torts law is governed under
common law and as such, is made entirely of civil lawsuits (Seaquist, 2019). There are many
ways someone can claim reparations for another party’s liability. For this section, we will talk
about a way one person can press charges based on sexual harassment. By using the above situation the author will explain what can be used to prove that Justice Hoffman is liable for negligence for sexual harassment. There are three tort actions, and only one of them will be discussed,
and that is negligence (Seaquist, 2019). In the above case, Ms. Marquez is the plaintiff, and if
this case went to court, Ms. Marquez would be suing her employer, The State of New York for
negligence. For a negligence lawsuit to go forward, Ms. Marquez needs to show four elements,
and those elements are duty, breach, causation, and harm.
The four elements that must be proven for Ms. Marquez to prove negligence are duty,
breach, causation, and harm (Seaquist, 2019). Duty of care is the “obligation someone has to do
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or not do something that will harm someone else” (Martella, N.D). In the situation above, the
duty Ms. Marquez was owed was broken because Ms. Marquez was owed a duty of care by the
state because she was a state employee. The state violated Ms. Marquez’s duty of care when the
state and the officials that were told about the sexual harassment situation ignored and avoided
her, in-turn the state ignored their duty of care to their employee. The next element is a breach; a
breach means that Ms. Marquez must show that the state breached the duty of care that they
owed her (Boudreau, 2019). We proved that Ms. Marquez was owed a duty of care by the state
as her employer, and as her employer they ignored her claims of sexual harassment and breached
the duty of care that was owed to her. The duty of care is based on what a reasonable person
would do, and in this case, anyone who would hear of a claim of sexual harassment needs to
properly investigate the claim (Seaquist, 2019). We know that the state owed a duty of care
based on what a reasonable person would have done. Meaning that the state should have at least
investigated the claim of sexual harassment, but instead, they ignored Ms. Marquez and avoided
her so they breached the duty of care that was owed.
The next element would be causation; there are two types of causation, and they are actual and proximate cause. For all torts, the plaintiff must prove that the defendant was not only
the actual cause but also the proximate cause of the injury (Seaquist, 2019). The injury could be
a lot of things but with sexual harassment cases injuries can be a decline in mental health, loss of
a job, or loss of position. All of theses plus more are considered injuries that a plaintiff can claim
as a loss or the harm done. The actual harm from the sexual harassment in the case above would
be the loss of Ms. Marquez's job and the hostile work environment that was created by the justice
and The State of New York (Harris, 2017). To prove that this was the actual cause, a person can
use the "but for" test. For example, but for the justice's indiscretions, Ms. Marquez would not
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have lost her job (Seaquist, 2019). A way a plaintiff can prove proximate cause is that a plaintiff’s harm had to be reasonably foreseeable consequences of the defendant's wrongful actions
(Daniel & Dorothy, 2018). This means that because of the justice’s indiscretions and the court
officials ignoring Ms. Marquez's accusations, a judge could have foreseen Ms. Marquez losing or
quitting her job. The last element in this situation is harm. We previously discussed what harm
could be and harm is defined as an injury to another (Seaquist, 2019). The harm in the situation
above would be established as Ms. Marquez losing her job. Since all four elements can be
proved, this shows that this sexual harassment case can be a fair lawsuit in torts law as negligence.
Employment Law
Employment law is made up of many different laws that protect employees from the businesses, and sexual harassment can lay within employment law. The law that will be examined is
the Code of Federal Regulations (C.F.R.) 1604.11 “Sexual harassment. (a) Harassment on the basis of sex is a violation of section 703 of Title VII; This regulation states that any amount of unwelcome sexual advance, topic, or physical contact that is intentional or unintentional in the
workplace, which makes the workplace uncomfortable” (Seaquist, 2012, sec. 25.1). In the case
above, Ms. Marquez must prove that sexual harassment occurred in the workplace. When taking
a closer look we can see that everything that the justice had done while Ms. Marquez was working under the justice would be considered sexual harassment under this code. Justice Hoffman
created a hostile workplace as soon as Ms. Marquez was hired. Justice Hoffman did this by telling Ms. Marquez to eat lunch with him, to sit closer to him, and by telling her to take off her
jacket. All of theses events could be considered sexual harassment a person. The justice continued to harass Ms. Marquez by talking to her about inappropriate topics like the pornagraphic star
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cases or the extramarital affair cases he previously worked on. This would be a violation of section 703 of Title VII. The code describes topics that can be considered unwelcome in the workplace. That means that the topic of pornagraphic stars and affairs weather intentional or unintentional caused Ms. Marquez to be uncomfortable at the workplace (Wang, 2019). To sum this section up, there is proof that the justice created an uncomfortable sexually oriented workplace for
Ms. Marquez. This in-turn caused her to feel threatened for her job and in the end she lose her
job. Not to mention the fact that the state of New York who was told about these sexual harassment claims ignored and avoided Ms. Marquez. The fact that her employer the State of New
York ignored her claims of sexual harassment draws in another law under constitutional law.
Constitutional law
The Constitution has been around for a long time, and in that time, the government continues to amend the Constitution by adding acts. The 14th Amendment governs sexual harassment and under this amendment lies Title VII of the Civil Rights Act of 1964 (Schoenheider,
1986). This act was set in place to protect all people from sexual harassment by the businesses
that they work for (Rosenbaum & Schmucker, 2017). The act has several sections in it, which
help protect people in businesses, and this act also establishes what can happen if the act is broken. Under section, SEC. 2000e-3. [Section 704], this section states that discrimination against
harassment charges is an unlawful employment practice. Ms. Marquez expressed concerns about
her boss several times to the state human resource department. This proves that her employer did
not do anything or investigate any of her claims. As such, Ms. Marquez was under the legal protection of this act even after she had transferred, and the state would not have been able to fire or
terminate her employment while the claims were being investigated.
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To go a little more in-depth in the history of this section, in the 1970’s the court system
realized that sexual harassment against women was overwhelming "courts finally have begun to
treat sexual harassment not merely as an affront to an individual's self-esteem but rather as a devastating form of discrimination in violation of Title VII of the Civil Rights Act of 1964"
(Schoenheider, 1986, Pg. 1467 ). Courts now analyze sexual harassment in the work place by
looking to Title VII of the Civil Rights Act and the sexual harassment guidelines of the EEOC
(Equal Employment Opportunity Commission)(Schoenheider, 1986). As previously discussed,
the EEOC establishes sexual harassment as “any unwelcome sexual advance that was intentional
or unintentional that leads to an uncomfortable workplace” (Seaquist, 2012, sec. 25.1). In the
torts section, the above sexual harassment situation was established, and the author proved what
made the situation for Ms. Marquez, an uncomfortable workplace because of the sexual harassment the justice was committing. Since the author was able to establish that Ms. Marquez was a
victim of sexual harassment, she would be covered under Title VII of the Civil Rights Act of
1964, and this, in turn, allows the court to rule in her favor under the 14th amendment. Since the
author has established what laws sexual harassment lies under, let us look at the ways a company
can reduce its liability in sexual harassment cases.
Reduction of Liability
Sometimes in sexual harassment cases, if the company does not do certain things to prevent sexual harassment or stop the sexual harassment from continuing, that company can be liable. There are also times when courts may not even agree that the situation above has reasonable
proof of sexual harassment. For example, a precedent was set in the case Rabidue v. Osceola Refining Co, that even repetitive unwarranted language and inappropriate posters of coworkers the
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courts said that the male employee’s actions were not enough to prove a hostile work environment” (Schoenheider, 1986, P. 1468). Ms. Marquez may have had a rude boss but he never physically touched her. If she had not had lost her job she probably would not have a sexual harassment case. However, because Ms. Marquez was fired and told the offices at her job about the situations going on she was protected and so was her job under the EEOC guidelines. This is relevant because companies need to understand that if they violate EEOC laws, they can get into liability issues. EEOC law states that the business is only liable if the business knew about the sexual harassment claim and did nothing about it (Hersch, 2017). To further explain, the EEOC
states “to reduce the business liability in a sexual harassment case, the business must prove three
things: a company must prove, “that they tried to prevent and promptly correct the harassing behavior and the employee failed to take advantage of any preventative or corrective opportunities
provided by the employer”( Civil Rights Act, 1964,p. 5). When taking this quote and applying it
to the sexual harassment situation, the employer did exactly what they should not have done.
The first issue the employer should have done was to take action against Ms. Marquez’s
claim of sexual harassment. Whether that would be to ask the justice what was going on or even
to limit how much Ms. Marquez’s work was with the justice (Cheung, Goldberg, King & Magley, 2018). These would all be things that Ms. Marquez’s employer could have done instead of
ignoring her claim. The first way to limit an employer’s liability in a harassment lawsuit is that
an employer must show proof that they acted or tried to prevent any more harassment incidences
from happening and that they took action against any claim by investigating or taking corrective
action against the person(s) responsible for the harassment ( Civil Rights Act, 1964,P. 5). The
second issue or step a company can do to reduce their liability would be not to fire or demote an
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employee that tells them of claims of sexual harassment (Ansley, 2018). Within the EEOC statute “ the employer is automatically liable for harassment by a supervisor that results in a negative
employment action such as termination, failure to promote or hire, and loss of wages” (U.S.
Equal Employment Opportunity Commission, 2019, Sec. Harassment). In the above situation,
because Ms. Marquez lost her job after she told her employer about the harassment and they did
nothing about it, her employer would be completely liable in this situation. To make sure that an
employer can limit their liability, an employer must take action against any claims of sexual harassment, and an employer must not try and solve the issue by firing or demoting an employee
that may be in a harassment situation.
Ethics within the company or business is important for a non-threating and non-hazardous workplace. When a company can establish a good work environment and good morale between all employees within the company, that company can maximize its profits (Drobac, 2007).
This is what would be called a healthy work environment when people are not afraid of getting
hurt or losing their job ( Civil Rights Act, 1964). Studies have shown that employees are more
productive and willing to be more welcome to change when they are not afraid of getting hurt or
losing their job (Mainiero & Jones, 2013). Ethics plays a large role in this. In the previous sections the author states that the company has a duty to protect and care for their employees as an
ethical solution to this as well as a legal one. A company can also limit their liability if they implement company policies against sexual harassment. This would show that a company wants the
trust of its employees, and by giving the employees more protections against sexual harassment
it will improve employee morale (Greenberger, 2018). Any company policy regarding sexual
harassment, should also detail what disciplinary actions will be taken if the policy is broken. This
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will include the company’s ethical duty of care that a company owes to its employees for their
safety and will also reduce liability.
Conclusion
Sexual harassment from men is prevalent throughout the world. There are cases that just
slip through the cracks, and the author wants the reader to understand that sexual harassment can
happen and can be prevented. This paper provided a current business situation that puts a spotlight on sexual harassment. A company should understand the importance of sexual harassment
and how it can affect the employees involved. So after the author has established the work situation, the author then illustrates multiple outcomes of the situation with two different types of ethical theories. The ethical theories that were talked about were ethical absolutism and virtue ethics. After the author established that theses two ethical theories have different outcomes, the author the when into the importance of all of the different laws that govern sexual harassment. The
laws that govern over sexual harassment are torts and the four elements of a torts case that must
be proved; To employment laws and the federal regulation codes that help employees not get
taken advantage of; lastly, constitutional laws and court precedences that tie in the 14th amendment with EEOC laws to protect harassment victims. After laws were explained, the author finally listed some ways that a company can ethically and lawfully reduce the liability that a company can have within a sexual harassment case.
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