Workplace Sexual Harassment and Public Law

Definition of Sexual Harassment

Sexual harassment refers to conduct that is sexual but is unwanted. The harassment may take a verbal, non – verbal, mental, visual or physical perspective. First, this may be on plausible grounds to be regarded by the one receiving it as a case whereby their employment is being correlated with a sexual condition. Second, on a plausible basis, it may be perceived by the one receiving it as wrongdoing, degradation or a danger to his/her well being and yet not directly associated with their employment.

Looked at from this definition, sexual harassment may be portioned into two parts: sexual coercion¹ and sexual annoyance. Sexual coercion is a case where a victim’s employment is affected as a result of sexual harassment. An example is an organizational case where a superior who has the mandate over benefits such as promotion and pay increment coerces a subordinate into granting sexual favors. If the subordinate does not give in to the demands, job benefits will be denied.

On the other hand, if the subordinate gives in to the coercion, job benefits will be accorded to him or her. Sexual annoyance refers to the conduct that is sexual in nature and one that seems to be offensive, intimidating, and antagonistic to the recipient; however, it is not related in any way to the job benefits. However, the offensive conducts result in a working environment that is bothersome and one that requires the recipient to put up with if they have to keep on working. An example of sexual annoyance is sexual harassment that is made by an employee against a fellow employee or that one made to the employee of a given company by the company’s client².

Relevant Laws

Offering solutions to problems of both public law and public administration entails the efforts of dealing with questions that are difficult under pressurized circumstances. Generally, administrative law is the field of law that deals with these problems. For the same purpose, administrative law entails both procedural and substantive issues. Apart from incorporating law and administrative issues, administrative law also entails other aspects such as the connection between public contracting and other operations that are administrative.

Developing a relevant conceptual framework to help provide guidelines on how to address issues that emanate in the administrative justice system is an ongoing challenge. A rule of thumb that can be of benefit is the ability of one to be able to look at a problem from the start and be able to tell whether any of these six issues are present. These aspects include constitutional, legal, factual, contractual, practical, and supranational.

In the contemporary public administration system, contractual issues can take about four different dimensions. First, there are external sectors under which private based firms are paid by both the state and local governments to provide goods and services. In most cases, most for-profit or non-profit organizations are the ones responsible for helping the government provide health care services to its people.

Second, there are inter-organizational governance contracts that enhance public/private partnerships between the government and non-government entities. Third, there are inter-jurisdictional agreements that encourage a community to carry out a public responsibility and to be compensated in a given way. Fourth, we have internal and personnel based contracts. Collective bargaining agreements are embraced by many agencies and they contain procedural obligations that relate to the way employers especially public managers deal with their employees.

Thus, the issue of sexual harassment may fall here, given sexual coercion. Within the confines of the states and the federal for instance, workers that have disputes with their employers may set to go on in accordance to the guidelines laid down in the collective bargaining agreements or under those in the civil service laws³.

From around the mid-twentieth century, informational processes were declared the main supportive element of the administrative process. Resolving problems that are lawful and administrative by the consumers and producers of administrative positions in a formal way may be regarded as unusual. All efforts may be used to ensure that all problems have been resolved through informal processes. These processes may be through simple chatting, telephone communication or total negotiations.

Americans are so much accustomed to the formal mode of addressing administrative issues such that when a customer’s issue is being handled by the administrative agency, the customer may ignore notices notifying them that the administrative action about their issue is already going on. This may happen until it gets too late for them to get to resolve the issue with the agency concerned⁴.

Informal procedures normally take place gradually. Sometime prior either to or after the activation process has commenced; vital unofficial commitments are made by the producers and consumers concerning the appropriate action that ought to be taken. Vital effects in future decision making are dependent not only on the informal relationship but also on both political and economic factors in the decision environment. Being able to read the decision environment using informal indicators is very essential for all participants in a case.

This involves an extraction of the main aspects of the decision environment, those that can be found within the agency and then changing these indicators into a form that can be easily understood and one that a manager can use to know the alternatives and anticipate the effects of using other courses of action. For plans to be converted into actions, some feasibility components ought to be dealt with and if there are to be any consequences. They entail the feasibility in terms of the financial, technical, cultural, lawful, administrative, political, and moral dimensions⁵.

Technical feasibility refers to a situation where the administrator of an agency is prompted to consider the agency’s technical mandate for other participants in the decision environment. Look for scientific or technical authority in any discipline from an agency is not common sense there is a reduction of agency staff, contracting technical work from outside the agency and rivalry for technical skills in the market. Secondly, about legal feasibility, it is important to understand that given that agencies are legal entities; their action cannot exceed their limits of authority.

Apart from considering this, it is also vital to be aware of executive orders, authorities that affect nations and obligations based on contracts. Concerning fiscal feasibility, it is important to consider whether apart from the legal framework, a government body has the resources needed to carry out its lawful duties. Fifth, it is vital to consider an agency’s administrative feasibility. This speaks of the organizational capacity, managerial ability and operational facilities needed to carry out its duties. Cultural feasibility will be about the organization culture and anthropological perspective of the agency. Moreover, the ethical feasibility is essential in knowing the norms that govern the internal operations of the agency⁶.

Informal administrative are affected by several factors. These are pressures of policy, sunk costs, anticipated costs, and power law. First, administrators receive many pressures from laid down policies about the use of informal processes and working within a negotiation-based framework. The second factor that affects the use and effects of informal processes is the concept of sunk costs. After all, parties involved in an informal administrative action have committed, the efforts and financial resources used to come to this commitment provide a point that is very difficult to turn away from.

Anticipated costs, on the other hand, refer to a situation whereby one chooses to use the informal option rather than the formal one due to the high costs involved in the use of the latter. Another factor is the power law. According to Green’s analysis, there are several reasons as to why power law matters: It affects the way statutes are developed, the supervision of disputes related to main public policies in government agencies, the development of cases that will give rise to vital precedents and the establishment of regulations and other statements of policy issued by agencies⁷.

Due to the diversity of jobs and tales within the public service, generalizing the rights and responsibilities of employees, therefore, becomes difficult. Due to that challenge, the George Bush administration made a move tom come up with models of human resource management that were to be outside the conventional framework of the civil service. In addition to these changes, there has been an emphasis on outsourcing and the use of the contract. These changes are just the beginning points of the various types of public servants. They can be categorized into civil servants, political officials, special employees, and contract employees.

An individual’s exercise of perceived rights or liberties can be limited by the employer (the government) in three different ways. First, certain employee activities can be limited. These may include time, place, and some recognized rights such as peaceful picketing. Secondly, the government may introduce prohibition. For example, some claimed employee rights such as partisan politics engaged in by employees might be prohibited by the government. Moreover, employees who do not comply with agency rules and regulations may be punished by the government. Some of the modes of punishment may entail pay reduction, suspension, or even employment termination.

Difficulties in Proof

Some issues to do with employees have recently been emerging though they are not yet part of the case law. These are cases of employees’ objection to the surveillance and control on the use of computer services such as email and the internet. Another aspect is the use of office facilities to access and distribute information that might be offensive to other employees and borders on claims that permitting display of content that is sexually explicit or use of sexist or racist based emails does not only amount to harassment, but also a hostile working environment⁸.

Thus, the application of the case law is beginning to develop in the area of sexual harassment. For instance, a Virginia policy on computer use that banned using state-owned computers to access some sites on the internet that have sexually explicit content has been upheld by the fourth circuit. Despite the state’s modification of the meaning of ‘sexually explicit’ content, the problem was reported to have not changed and the main aspects were the monitoring of internet us and monitoring. Implementation of some of the policies that pertain to this is still challenging due to some factors such as technological changes.

For example, it is a common scene to see most employees accustomed to the use of handheld computer gadgets such as laptops, which are not connected to the central Information Technology system of a given organization. Such laptops have internet connections that can be used by the user to access sites of their choice. This, therefore, makes it hard to tell the type of policies that should be implemented and the particular approaches of enforcement and solving of disputes that will be adopted to ensure those policies have been enforced⁹.

Increasing Number of Suits

The constitution has raised controversies over issues of lifestyle and privacy. Some employees have used the constitutional right to protection of privacy as a basis to challenge some rules relating to public employment. Although the right to privacy has not been directly articulated in the constitution, the Supreme Court asserts that it is implied within the Bill of Rights. Several government employees who are opposed to the restriction on the lifestyle and sexual conduct have raised related arguments. Whereas they have been supported by some lower courts, the Supreme Court has carefully evaded several cases that needed answers regarding the job layoffs of some workers who had undergone sex-change operations and prohibitions against gay.

In the Lawrence case, the Court was against the Texas statute of regarding as crime two people of the same sex are engaged in intimate sexual conduct. It is still unclear on the effect that the Lawrence case will have in cases of public employment, as the majority will most likely be opposed to it¹⁰. The requirement that one should reside in the government jurisdiction within which one works has caused many employees to bring suits challenging it.

Protection of Victims’ Rights

Research¹¹ has revealed that whereas women are the targets, men tend to be the perpetrators of sexual harassment¹². Hierarchical organizations form some of the main places where sexual harassment is common. The number of men in such places is greater in comparison to that of women. Most people who are sexually harassed do not launch official complaints. Some courts now consider sexual harassment as discrimination against gender.

Earlier claims had reflected the reasoning that women had who had been laid off their duties as a result of turning down sexual advances, had been segregated based on sex. Such early cases were nullified in the district courts where judges affirmed that rather than constituting employment discrimination, the situations were more of personal dysfunctions.

Coming up with a definition of sexually, oriented conduct that is lawfully permitted at the workplace has become a major challenge. For instance, in the sixth circuit, it was found that a woman who filed a suit regarding men employees having directed obscene remarks at her and other female employees and that nude pictures of women were displayed by other men at the workplace did not make the case in a manner suggesting that all these acts of sexual harassment did constitute a workplace that was threatening, hostile and one that offended her¹³.

The United States Supreme Court then ruled that, a woman filing a suit against her employer for having sexually harassed her does not need to verify that the alleged act had caused her to suffer psychologically. This made the Supreme Court define sexual harassment as any act that converts a working environment into a place that is hostile¹⁴ or abusive to a normal individual, hence making them find it difficult to carry out their responsibilities¹⁵. It took Harris six years to try to verify to the judges that she had undergone sexual harassment, which was against the law.

The cases involved her employer who had been asking to take her to a local restaurant to discuss her salary increment, he had asked her and fellow women employees to get some money from his pants and pockets and had made remarks that were abusive and with sexual connotations. However, after evaluating the case, lower Court judges concluded that the conduct of the boss was not serious enough to affect the plaintiff psychologically. On the other hand, the Supreme this countered this conclusion asserting that the federal law presided over the harassing behavior affecting the plaintiff psychologically¹⁶. Sexual harassment cases are developing in a very interesting way.

Some circuits have resolved that in evaluating the claims of a given plaintiff, decision-makers should discard the standard of a reasonable man or person and instead adopt that of a ‘reasonable woman’. This has been followed suit by several circuits. The role of gender in a legal standard is one of the key issues that are raised by the use of the reasonable woman test. Given the continual variations of men and women in their assessment of sexual harassment and the bias to the law by men, the element might seem to be not only refreshing but also corrective.

The reasonable woman test has been opposed for several reasons: it is too general and does not consider the numerous differences that women have, and it gives a view that is generalized for the reasonable woman. Also, it is criticized for over-relying on one aspect – sex and yet numerous other factors go hand in hand with gender. These include race and class.

Bibliography

Cling, B.J. Sexualized violence against women and children: a psychology and law perspective. NY: Guilford Press. 2004.

Cooper, Philip. Public Law and Public Administration. 2007 (Attached Material).

Gold, Liza. Sexual harassment: psychiatric assessment in employment litigation. Arlington: American Psychiatric Publishing. 2004.

National Labor Relations Board. Decisions and the Orders of the national labor relations board. Volume 346. NY: Government Printing Office. 2007.

Sanders, Joseph and Hamilton, Lee. Handbook of Justice Research in Law. NY: Kluwer Academic Publishers. 2001.

Shrier, Diane. Sexual harassment in the workplace and academia: psychiatric issues. Arlington: American Psychiatric Publishing. 1996.

Thavarajah, Thavalingam. Constructive dismissals: Commentary and Cases. Singapore: CCH Asia Pte Limited, 2008.

Footnotes

1. National Labor Relations Board. Decisions and the Orders of the national labor relations board. Volume 346. (NY: Government Printing Office, 2007), P. 87.
2. Thavarajah, Thavalingam. Constructive dismissals: Commentary and Cases. (Singapore, CCH Asia Pte limited, 2008), p. 265.
3. Cooper, Philip, Public Law and Public Administration, 2007.
4. Cooper, Philip, Public Law and Public Administration, 2007, p.284 – 285.
5. Cooper, Philip, Public Law and Public Administration, 2007, p. 286 – 287.
6. Cooper, Philip, Public Law and Public Administration, 2007, p. 288 – 289.
7. Cooper, Philip, Public Law and Public Administration, 2007, P. 290 – 293.
8. Cooper, Philip, Public Law and Public Administration, 2007, p. 490.
9. Cooper, Philip, Public Law and Public Administration, 2007, p. 491.
10. Cooper, Philip, Public Law and Public Administration, 2007, p. 492.
11. Cling, B.J. Sexualized violence against women and children: a psychology and law perspective. (NY: Guilford Press, 2004), p. 118.
12. Shrier, Diane. Sexual harassment in the workplace and academia: psychiatric issues. (Arlington: American Psychiatric Publishing, 1996), p. 62.
13. Sanders, Joseph, and Hamilton, Lee. Handbook of Justice Research in Law. (NY: Kluwer Academic Publishers, 2001), p. 330.
14. National Labor Relations Board. Decisions and the Orders of the national labor relations board. Volume 346, (NY: Government Printing Office. 2007), p. 1192.
15. Sanders, Joseph, and Hamilton, Lee. Handbook of Justice Research in Law. (NY: Kluwer Academic Publishers, 2001), p. 330.
16. Sanders, Joseph, and Hamilton, Lee. Handbook of Justice Research in Law. (NY: Kluwer Academic Publishers, 2001), p. 330.