Summary

The number of sexual harassment cases has been increasing in therecent past. The You be the Judge: Sexual Harassment videooffers insights into the way a seemingly trivial matter can causemuch discomfort to other employees (McGraw Hill Higher Education,n.d.). The case in question is such that the employees hadover time created a workplace environment that allowed for sexualinnuendos to propagate freely. The supervisor and by extension, theemployer can be deemed negligent. It is the role of the supervisor toensure that the employees under him or her are well informed of allworkplace related policies McGraw Hill Higher Education,n.d.). As such, this would have created the necessary avenuestowards enabling Mr. Silverstein to report instances of sexualharassment behaviors projected to him by other employees.

As the judge ruled, the plaintiff’s decision to sue Miss Shaw wasnot grounded on sexual harassment (McGraw Hill Higher Education,n.d.). Mr. Silverstein only sought to employ legal redress onthe matter after believing he lost out on a possible promotionopportunity as a result of the defendant’s actions. The judgeperceived that there was no hostile workplace environment of quid proquo basis for Silverstein to cite sexual harassment. The case wouldhave moved on in a different direction if Miss Shaw was theplaintiff’s superior as the quid pro quo basis could have heldtrue. In this case, the employer would be liable for allowing forsexual harassment to thrive in the workplace (Deakin &amp Morris,2012). If an independent contractor hired by the firm to offerspecialized services was accused of sexual harassment, the law wouldhave compelled the employer to take liability for the third party’swrongful actions. This would have been regardless of whether theemployee used the firm’s correct sexual harassment protocols ornot.

There are numerous forms of employment discrimination in mostworkplace environments (Berring, &amp Chan, 2014 Cavico, Muffler, &ampMujtaba, 2012). Sexual harassment has sufficed as the most commonform of harassment in the workplace hence, it is the duty of everyorganization to cultivate policies geared toward inhibiting itsdevelopment. The assessment of a sexual harassment scenario issignificant in determining the various elements to a workplaceharassment. As such, the paper seeks to review a short video titled,You be the Judge: Sexual Harassment and present an analysis ofevery element in the subsequent cause of action, pertinent defensesand the basis of the judge’s final ruling. More so, the paper willalso present an analysis of possible civil liability for the employeras well as the employee. Finally, the paper will offer an analysis onthe different liabilities associated with the case in the instancethe sexual harasser being an independent contractor against theemployee.

Cause of Action

In this particular case, Mr. Silverstein presents his argumentsbefore the judge against the defendant, a fellow coworker for anaction that he believes led to his losing a career changing promotionMcGraw Hill Higher Education, n.d.). Thedefendant, Miss Shaw, is accused of placing a sexually explicitscreen saver in a purported office prank (Kabat-Farr &amp Cortina,2014). Silverstein and Shaw work together with two other malecoworkers and upon a series of inquiries by the judge, it turns outthat it is common for the four employees to share images and messageswith sexual innuendo (McGraw Hill Higher Education,n.d.). However, Silverstein speaks out and declares that ifand when he receives such images, he promptly deletes them. Theevidence presented before the judge is sexually explicit in natureand as such, was supposedly seen by the team’s supervisor leadingSilverstein to believe that this was the cause for his lack ofpromotion. From the cases presented, it is apparent that theemployees work in an environment that lacks a credible workplaceharassment policy. The four employees share images and messages withsexual innuendos, a situation that should not occur in a workplace.This means all the employees are in the wrong since sending sexuallyexplicit images and messages in the workplace points to sexualharassment (Cavico et al., 2012 Leroughe &amp Hebert, 2013).Sending sexually explicit messages and images usually irritates otheremployees and in some cases makes them feel as if they are targeted.In this regards, upon receiving these images or messages, theemployees ought to have reported the matter to their supervisor.

Pertinent Defenses

Inher defense, Miss Shaw provides that it was common place for the fouremployees to hug, touch and joke about in the office (McGraw HillHigher Education, n.d.). She terms Mr.Silverstein’s allegations as ridiculous. Miss Shaw provides thatthe other employees also get involved in sexually related issue. Mr.Silverstein goes on to provide that Miss Shaw is mostly proactivetoward encouraging the behavior under discussion in the workplace.The judge questions Mr. Silverstein as to whether he had ever takenany action such as discussing the issue with the defendant orworkplace supervisor (McGraw Hill Higher Education,n.d.). In an effort to blend in with the team, he opines thathe has never made such efforts. The plaintiff as well as defendantclaim to have never signed any agreements with the employerconcerning sexual harassment policy in the workplace (McGraw HillHigher Education, n.d.). The defendantalso puts the plaintiff to task for failing to approach her anddiscuss the issue towards finding a solution and as such, she cannotbe held accountable for the lost promotion.

Basis of Ruling

Thejudge made the ruling on this particular sexual harassment case infavor of the defendant. The judge made the observation that thepurported workplace behavior was considered by all employees asnormal (McGraw Hill Higher Education, n.d.).Furthermore, the plaintiff failed to make the issue known to hissuperiors and Miss Shaw implying that the behavior could havecontinued if the plaintiff did not feel aggrieved for the lostpromotion. The judge was of the view that the plaintiff waspreviously comfortable with the defendant’s behavior and as such,was an active participant of the behaviors propagated in theworkplace (McGraw Hill Higher Education, n.d.).The Judge, therefore, ruled that there was no suit in the sexualharassment case.

Possible Civil Liability for the Employer and Employee

Theevidence presented in this case provides that the company in questiondid have a sexual harassment policy in place (McGraw Hill HigherEducation, n.d.). However, both Mr.Silverstein and Miss Shaw provided that they were not privy to policyagreement in place as they had not signed it. Vicarious liability inthis case might accrue to the employer based on such information.Similarly, the employee being the plaintiff did not take thenecessary measure to avoid recurring incidences of sexual harassmentby reporting the issue to the supervisor (Roberts &amp Mann, 2015).The employer should also have sought to ensure that the supervisorinformed all employee of the firm’s sexual harassment policy(Deakin &amp Morris, 2012). As such, the employer should be deemednegligent of failing to ensure that the sexual harassment policy isknown to all employees in an effort to limit instances of unwarrantedbehaviors in the workplace. It is also important to note that theemployees were not regularly updated on the workplace harassmentpolicies, which means that they felt everything they were doing wascorrect. The employer ought to have regularly communicated itspolicies especially on workplace harassment to the employees to avoidconflict. This means that the employer is at a great risk of civilcases from its employees.

Different liability in the case

There are instances where organizations hire services fromindependent contractors. This complicates the sexual harassment issueconsiderably. For instance, a court may deem the actions of theindependent contractors as grounds for the employer to suffer civilliability (Cooper McLoughlin &amp Kent-Ferraro, 2013 McDonald,2012). The employer is mandated by established laws to ensure thatquid pro quo harassment does not propagate in the workplace. Quid proquo sexual harassment occurs where a senior employee or independentcontractor seeks sexual favor in return for positive workplacesituations such as promotions (Deakin &amp Morris, 2012). Anotherkind of sexual harassment which can present an employer with possiblecivil liability is the creation of a hostile workplace environment(Deakin &amp Morris, 2012). Allowing the independent contractor orsenior employees to engage in consistent sexual advances towards eachother created an environment for sexual harassment.

References

Berring, R. C., &amp Chan, A. A. (2014). Women and sexualharassment: A practical guide to the legal protections of Title VIIand the hostile environment claim. London, UK: Routledge.

Cavico, F. C., Muffler, S. C., &amp Mujtaba, B. G. (2012). Sexualorientation and gender identity discrimination in the Americanworkplace: legal and ethical considerations.&nbspInternationalJournal of Humanities and Social Sciences,2(1), 1-20.

Cooper, A., McLoughlin, I., &amp Kent-Ferraro, J. (2013). Virtualsexuality in the workplace: a wake-up call for clinicians, employers,and employees. Sex and the Internet: A Guide Book for Clinicians,109.

Deakin, S. F., &amp Morris, G. S. (2012). Labor law. Oxford,UK: Hart publishing.

Kabat-Farr, D., &amp Cortina, L. M. (2014). Sex-based harassment inemployment: New insights into gender and context. Law and humanbehavior, 38(1), 58.

Leroughe, L., &amp Hebert, L. C. (2013). Law of Workplace Harassmentof the United States, France, and the European Union: ComparativeAnalysis after the Adoption of France`s New Sexual Harassment Law,The Comparative Labor Law Journal &amp Policy Journal.,35,93.

McDonald, P. (2012). Workplace sexual harassment 30 years on: areview of the literature.&nbspInternational Journal of ManagementReviews,&nbsp14(1), 1-17.

McGraw Hill Higher Education. (n.d.). You be the Judge: SexualHarassment. Retrieved 15 July 2016 fromhttp://judge.mhhe.com/mm.html

Roberts, B. S., &amp Mann, R. A. (2015). Sexual harassment in theworkplace: A primer. Akron Law Review, 29(2), 5.