Liability for Workplace Sexual Harassment

Sexual harassment in the workplace is a serious issue that can have a significant adverse impact on performance and well-being of the company’s employees. As such, it has been recognized as a potential cause for employer liability, as pertaining to the Title VII of the Civil Rights Act of 1964. Even though the term itself is not explicitly mentioned in Title VII, the United States courts have consistently ruled that sexual harassment presents a form of discrimination that is based on employee’s sex. Therefore, organizations have a certain responsibility to prevent its occurrence in the workplace, even if discriminatory actions are carried out by individual perpetrators and not by the company as an entity (Mallor, Barnes, Bowers, & Langvardt, 2009, p. 1421).

The present paper analyzes a hypothetical case presented in an educational video, where the plaintiff Jonathan Silverstein accuses his co-worker Meredith Shaw of sexual harassment in the workplace (Sexual harassment: Did sexy prank kill promotion? n.d.).

First, the paper provides an analysis of the cause of action and applicable defenses in the case, and then it proceeds with an overview of potential civil liability of the employee and the employer. The final section considers the differences in the legal status of an independent contractor versus an employee. Based on the analysis, the paper concludes that neither the company nor the accused employee can be held liable in the present case since no incident of sexual harassment has occurred, according to the testimonies of both the plaintiff and the defendant.

In the present case, the cause of action was the allegation of a hostile work environment created by sexual remarks and jokes by the plaintiff’s colleague. In particular, according to the plaintiff, Ms. Shaw has put a nude dancer screensaver on his office computer costing him a likely promotion to a managerial position. As has been established in the Ashmore v. J.P. Thayer Company case, a hostile environment is created by “unwelcome” sexual behavior that a “reasonable person” would consider abusive (Mallor et al., 2009, p. 1423).

In this case, two main defenses are applicable. First of all, it is the issue of implied consent that has been conveyed by both the plaintiff and the defendant in their statements. Mr. Silverstein has never discouraged the sex-related discussions and jokes that took place in the office.

Moreover, he willingly participated in them, even though he claims his only motivation was to be part of the team. Thus, the plaintiff never expressed to his colleagues or supervisors that such remarks were in any way unwelcome. The second possible defense is that the company cannot be held liable since the management was not made aware of the instances of perceived sexual harassment. As a matter of fact, these circumstances served as the basis for the Judge’s ruling in favor of the defendant. The plaintiff did not establish that the elements of a hostile work environment were present in this case, and he also failed to take the appropriate course of action to express his dissatisfaction to the company’s management.

Since Title VII of the Civil Rights Act of 1964 only covers the liability of organizations, no individual liability for the perpetrators follows from it. However, as far as employers are concerned, they are vicariously liable if someone in a supervisory position engages in sexual harassment – which has become known as the quid pro quo harassment (Lunenburg, 2010, p. 3). Since the defendant was not the plaintiff’s supervisor, this provision does not apply in this case. Nevertheless, organizations can still incur liability for the actions of their employees in non-supervisory positions if a complaint or constructive notice has been filed by the victim (Hahn, 2010, p. 80).

Since the defendant failed to notify the company’s management about the harassment that he allegedly experienced, the employer cannot be held liable in this case. Finally, even though the scope of Title VII of the Civil Rights Act of 1964 does not include the liability of specific employees, there is, in fact, a way to bring them to justice as individuals, although it is not commonly used. For instance, some states, such as California, have legal provisions against discrimination that allow individuals to be sued for harassment.

Besides, individuals can face civil tort claims associated with the sustained sexual harassment – for instance, infliction of emotional distress, assault, battery, or defamation (Montgomery, 2010, p. 888). However, these actions lie outside of the scope of the employment law. In any case, since the plaintiff did not establish that an incident of sexual harassment took place, no such claims can follow.

Independent contractors, since they are not legally considered to be the organization’s employees, present an interesting issue when it comes to employment law and anti-discrimination provisions. Independent contractors, for the most part, are not guaranteed the same worker protection as regular employees enjoy. Thus, if the victim were not employed by the organization, they would not be able to bring an action to court on the basis of Title VII of the Civil Rights Act of 1964.

However, if the sexual harasser were an independent contractor and not an employee, the company would still be potentially liable in this case. Organizations are responsible for protecting their employees from sexual harassment regardless of who the perpetrator is – a customer, a co-worker, or a supplier, as long as the contact between the harasser and the victim occurred in the course of employment (Jones, 2013, p. 430). Naturally, the same principle of direct liability applies – that is, the victim needs to notify the company’s management about the harassment.

The findings of this analysis are thus consistent with the Judge’s verdict. No incident of sexual harassment has taken place if the remarks made by the defendant were not, in fact, unwelcome to the plaintiff. Mr. Silverstein failed to file a complaint to the company’s management if he believed the defendant’s actions to be inappropriate. Thus, the company is neither vicariously nor directly liable for the actions of its employee. Generally, the scope of employment law is limited to organizations and not individual employees. Independent contractors, having a different legal status compared to employees, cannot hold a company liable for workplace sexual harassment. However, organizations are responsible to protect their employees from unwelcome sexual advances, regardless of their source.

References

Hahn, S. (2010). Civil rights – Evolution of the hostile workplace claim under Title VII: Only sensitive men need apply. Golden Gate University Law Review, 22(1), 69-92.

Jones, L. (2013). Introduction to business law (2nd ed.). Oxford, UK: Oxford University Press.

Lunenburg, F.C. (2010). Sexual harassment: An abuse of power. International Journal of Management, Business, and Administration, 13(1), 1-7.

Mallor, J., Barnes, J.A., Bowers, L.T., & Langvardt, A. (2009). Business law: The ethical, global, and e-commerce environment (14th ed.). New York, NY: McGraw-Hill.

Montgomery, A. (2010). Sexual harassment in the workplace: A practitioner’s guide to tort actions. Golden Gate University Law Review, 10(3), 879-928.

Sexual harassment: Did sexy prank kill promotion? (n.d.). Web.