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Sexual Harassment the employer?s responsibility

The US law has it that the employer can avoid sexual harassment to his employers by putting in place measures to avoid harassment. This is very important since as an employer, one should be able to take care of all that goes on in his organization. This does not mean that he should always be present to keep an eye on all that is going on. It is upon him to assign supervisors and managers that will ensure that there are high moral standards being up held in the work place. If the employer is not very conversant with the guidelines about sexual harassment, he can contact the EEOC based in Washington, DC. This paper addresses ways through which the employers can avoid successful lawsuits.

There are a number of ways through which the employer can prevent sexual harassment. To begin with, he can develop a written policy that deals with sexual harassment. This policy should indicate that sexual harassment violets the organizations policy and most importantly it is against the law. Another way of preventing sexual harassment would be through the development of an effective complaint procedure. Any worker that is subjected to sexual harassment within the organization can use the procedure to put forward his/her complaints. The most important thing will be to ensure that any kind of sexual harassment is reported and documented. This will give the management the support needed to set up a complaint meeting or take up the necessary steps needed by law for the case to be heard (Dothard v. Rawlinson,1977). There is no way the organization could take a case to court without record of complaint by the employees. In any case, this will also provide the employees with the chance to bypass the supervisor if at all he does not seem to take up any action for the reported cases. On the same note, the employees could also report the supervisor in case he is involved in the sexual harassment of the employees.

If the company gives the employees a chance or the platform to give complaints about their co-workers, then the employer will be able to deal with the case as soon as possible. Similarly, the employer will be aware of sexual harassment complaints within his company and take the necessary actions. In case an employee does not provide the employer with a complaint about his co-employees but runs to the court to report about being sexually harassed, then the employer will be in a better position to defend his actions. In any case, there is no way a manager or the employer would know about cases of sexual harassment if at all no reports or complaints are made. It would be a different case if the employer would not have provided the employees with a procedure to put forward their complaints. It will therefore be upon the employees to follow the regulations and procedure put in place by the company to prevent sexual harassment (Dothard v. Rawlinson,1977).

However, the employer is also supposed to respond to the complaints made by the employees in a manner that could help solve the problem. This should not be used as a chance to settle scores between employees or managers. A good company is that which values every employee and gives equal opportunity to everyone of them to succeed. However, hard work put forward by an employee should not put him above the law. As much as he might be useful to the company, it is important that a good organizational culture is created within the company. This can only happen if there are high ethical values within the company. The manager or the employee should therefore not dismiss an employee without listing to the complaint he has to make. As in it was realized in United Automobile Workers v. Johnson Controls, Inc. (1991) case it is important that any allegations are systematically and logically looked into before a final decision is made. However, no employee should be held guilty until the case is looked into with sobriety and without any sign of biases. As much as employees might have the right to report their complaints, you can never know whether the complaints are genuine or there is something behind it. Just like in any society, there is a possibility of an employee making allegation about another employee so that he could be dismissed from work. Such cases should be put into consideration.

The law also has it that the employer is liable for any harassment made by the supervisor in case it culminates in an employment action that is physical. However, in case it does not, it is very possible that the employer can limit damages or avoid liability by coming up with some affirmative defense. For instance, he can claim to have exercised enough and reasonable care to correct or prevent any sexual harassment behavior within the company (Dothard v. Rawlinson,1977). Similarly, he could also stand by the fact that the employee did not make use of any corrective or preventive opportunities that the employer had put in place to avoid being harassed.

The employer should therefore make sure that the decision he comes up with is the right one. This is very important because, if the plaintiff proves beyond reasonable doubt that there was an unlawful discrimination or sexual harassment for that matter, then he will reinstated, given retroactive promotion and awarded back pay. The employers should therefore put in place enough measures to ensure that any sexual harassment complaint is rightfully dealt with. If this does not happen, the employer might end going at a loss since he will take care of the above stated wards for the painful (Dothard v. Rawlinson,1977).

In order for the employer to prove that the complaint made by the employee is genuine, there are some elements that he needs to look into to ensure that he comes up with the right decision. To begin with, he should ensure that there was a direct relationship involving sex and the ability of the employee to undertake his/her duties at work. Some employees may just come up with a complaint that does not relate to his/her duties at work. The employee is only responsible for the unlawful acts that happens at work or that hinder an employee from comfortably dealing with his job. Any actions that happen outside the area of work do not concern the employer. There is no an employer can keep watch of his employees even after work or in their private life. Similarly the harassment being addressed should have prevented the employee from doing his/her work as usual. On this note, if the employer finds out that the complaint made by the employee might have prevent her/him from doing his work, then he should take the necessary action as soon as possible(United Automobile Workers v. Johnson Controls, Inc., 1991).

Similarly, the employer should look into the fact that the Bona Fide Occupational Qualifications relates to the central mission or the essence of the business of the employer. As stated above, the employer is only responsible for unlawful discrimination that relate to the business. Anything that happens in the employees’ personal life outside the line of duty does not concern the employer. The employer should therefore ensure that there is no reasonable alternative or less restrictive alternative to the decision made. According to the ruling the Automobile Workers v Johnson Controls, Inc, the judge ruled in favor of the plaintiff by stating that the court of appeal did not consider the effects that the children of its employees would have because of the fact that the employees were being exposed to traces of lead in their line of duty. This goes to prove that the employer should ensure that there is no reasonable alternative to the decision made. For instance in this case, Johnson Control, Inc might not have thought of the possibility of its workers putting up a defense on the basis of the effects of lead on their offspring. Such alternatives should well be looked at by the employer (United Automobile Workers v. Johnson Controls, Inc., 1991).

Just like it was realized in Dothard v. Rawlinson case, the BFOQ exception is a very narrow one to the discrimination prohibitions dealing with sex (Dothard v. Rawlinson,1977). For instance when Rawlinson’s application for the position of a correctional counselor was rejected because of the fact that she did not meet the minimum weight of 120 pounds and a minimum height of 5ft 2inch, she filed a charge. A three judge court made a ruling in favor of the appellee. This ruling was based on the Civil Rights Act of 1964 in line with the national statistics that relates to the comparative weight and height of women and men. This statistics state that the statutory standard of Alabama would exclude more than 40% of the female but for the male it would only exclude less than 1%. The court found out that the appellant had based her application on this statistics but the appellant didn’t rebut.

 

Reference

Dothard v. Rawlinson, 433 U.S. 321 (1977) 97 S.Ct. 2720).

United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991) 111 S.Ct. 1196)

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