Running Header: WORKPLACE SEXUAL HARASSMENT Workplace Sexual Harassment BUS670 Legal Environment Professor Foster 1 WORKPLACE SEXUAL HARASSMENT 2 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 WORKPLACE SEXUAL HARASSMENT 3 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 WORKPLACE SEXUAL HARASSMENT 4 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 WORKPLACE SEXUAL HARASSMENT 5 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. WORKPLACE SEXUAL HARASSMENT 6 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. WORKPLACE SEXUAL HARASSMENT 7 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 WORKPLACE SEXUAL HARASSMENT 8 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 WORKPLACE SEXUAL HARASSMENT 9 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 WORKPLACE SEXUAL HARASSMENT 10 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. WORKPLACE SEXUAL HARASSMENT 11 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 WORKPLACE SEXUAL HARASSMENT 12 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 WORKPLACE SEXUAL HARASSMENT 13 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 WORKPLACE SEXUAL HARASSMENT 14 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. WORKPLACE SEXUAL HARASSMENT 15 References Ansley, D. (2018). Has the Law Been Unsuccessful in Curtailing Sexual Harassment in Organizations? Contemporary Readings in Law & Social Justice, 10(2), 78–84. https://doi-org.proxylibrary.ashford.edu/10.22381/CRLSJ10220187 Bachman, E. (2019, October 3). Sexual harassment jury verdicts and settlements. Retrieved from https://www.zuckermanlaw.com/top-rated-discrimination-lawyers-washington-dc-maryland-virginia/sexual-harassment-jury-verdicts-settlements/. Boudreau, D., Rao, S. P. U., & Adhikari, D. R. (2019). Implications of the Tax Reform Act of 2017 on Sexual Harassment in the Workplace. Journal of Applied Business & Economics, 21(5), 11. Retrieved from http://search.ebscohost.com.proxy-library.ashford.edu/login.aspx?direct=true&db=edo&AN=138842326&site=eds-live&scope=site WORKPLACE SEXUAL HARASSMENT 16 Cheung, H. K., Goldberg, C. B., King, E. B., & Magley, V. J. (2018). Are They True to the Cause? Beliefs About Organizational and Unit Commitment to Sexual Harassment Awareness Training. Group & Organization Management, 43(4), 531. Retrieved from http://search.ebscohost.com.proxy-library.ashford.edu/login.aspx?direct=true&db=edb&AN=130320107&site=edslive&scope=site Civil Rights Act, 42 USCS § 2000e (1964). 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