Pub Date : 2000-04-01DOI: 10.2190/TK4B-61XK-UJ91-GD1W
J. F. Morgan, G. Gomes, J. Owens
This article examines the unintended consequences of an organization’s decision to outsource investigations of sexual harassment following a claim of wrongdoing. United States Supreme Court decisions have affirmed an employer’s “vicarious liability” for failing to take reasonable care to prevent or correct promptly sexually harassing behavior. Organizations not possessing in-house expertise to conduct such investigations will likely seek expert assistance from knowledgeable and experienced attorneys or private investigators from outside the firm. According to a recent ruling by Federal Trade Commission staff, such externally conducted investigations fall under the provisions of the Fair Credit Reporting Act, thus placing additional compliance burdens on firms attempting to rid the workplace of gender-based discrimination. This article reviews these developments, offers advice on managing the investigative process, and suggests ways in which business might lobby for changes in public policy to ease this newest burden. After sexual harassment took center stage during the 1991 confirmation hearings of Clarence Thomas as associate justice of the United States Supreme Court, the number of harassment charges filed with the Equal Employment Opportunity Commission (EEOC) rose substantially. Concomitantly, lawsuits claiming violations of federal and state sexual harassment laws became commonplace. The growth of harassment filings has increased liability risks for all organizations, 123
{"title":"THE UNINTENDED CONSEQUENCES OF OUTSOURCING SEXUAL HARASSMENT INVESTIGATIONS","authors":"J. F. Morgan, G. Gomes, J. Owens","doi":"10.2190/TK4B-61XK-UJ91-GD1W","DOIUrl":"https://doi.org/10.2190/TK4B-61XK-UJ91-GD1W","url":null,"abstract":"This article examines the unintended consequences of an organization’s decision to outsource investigations of sexual harassment following a claim of wrongdoing. United States Supreme Court decisions have affirmed an employer’s “vicarious liability” for failing to take reasonable care to prevent or correct promptly sexually harassing behavior. Organizations not possessing in-house expertise to conduct such investigations will likely seek expert assistance from knowledgeable and experienced attorneys or private investigators from outside the firm. According to a recent ruling by Federal Trade Commission staff, such externally conducted investigations fall under the provisions of the Fair Credit Reporting Act, thus placing additional compliance burdens on firms attempting to rid the workplace of gender-based discrimination. This article reviews these developments, offers advice on managing the investigative process, and suggests ways in which business might lobby for changes in public policy to ease this newest burden. After sexual harassment took center stage during the 1991 confirmation hearings of Clarence Thomas as associate justice of the United States Supreme Court, the number of harassment charges filed with the Equal Employment Opportunity Commission (EEOC) rose substantially. Concomitantly, lawsuits claiming violations of federal and state sexual harassment laws became commonplace. The growth of harassment filings has increased liability risks for all organizations, 123","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126056269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.2190/9ETC-U5TG-LB2N-WKBW
Mark D. Karper
{"title":"Dealing with Sexual Harassment: Issues of Discipline","authors":"Mark D. Karper","doi":"10.2190/9ETC-U5TG-LB2N-WKBW","DOIUrl":"https://doi.org/10.2190/9ETC-U5TG-LB2N-WKBW","url":null,"abstract":"","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130485525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.2190/H684-PR1K-4EYM-4U4L
C. Coleman
This entry in this issue of JIER is the first of what I hope will be a continuing feature of the journal. JIER is concerned with significant, contemporary issues bearing upon individual employment rights. I want to stimulate a discussion of such issues with outside experts and with the Journal‘s readers. My vehicle for doing so in this issue is a court decision. In the following pages is a lengthy extract from a case decided in 1999 by the Fourth Circuit Court of Appeals. I ask our readers to review this case and send me a oneto three-page analysis of the decision for possible publication in the Journal. I am looking for your thoughts on the issues raised in the case, your opinions about the decision and the reasoning, and your ideas about the implications of the case. Because this issue of JIER is concerned with sexual harassment, the case deals with that topic and with the enforceability of a predispute agreement to arbitrate sexual harassment and, by implication, other statutory issues. The case involves a hostess in a restaurant who was pinched and patted by her supervisor, complained, and quit when the company did nothing to rectify the situation. When she threatened to sue, the firm insisted on the enforcement of an agreement to arbitrate all such disputes. In the literature that deals with the arbitration of labor and employment disputes, one can find literally hundreds of articles on the arbitration of disputes that involve public policy or statutory issues. I ask that your analyses focus on the organizational, managerial, human, and ethical issues involved rather than on the technical and legal issues associated with predispute agreements to arbitrate. Please send your replies to: Charles J. Coleman, Editor Journal of Individual Employment Rights 19-21 Potter Street Haddonfield, NJ 08033
{"title":"A Dialogue on a Contemporary Issue: The Hooters Case","authors":"C. Coleman","doi":"10.2190/H684-PR1K-4EYM-4U4L","DOIUrl":"https://doi.org/10.2190/H684-PR1K-4EYM-4U4L","url":null,"abstract":"This entry in this issue of JIER is the first of what I hope will be a continuing feature of the journal. JIER is concerned with significant, contemporary issues bearing upon individual employment rights. I want to stimulate a discussion of such issues with outside experts and with the Journal‘s readers. My vehicle for doing so in this issue is a court decision. In the following pages is a lengthy extract from a case decided in 1999 by the Fourth Circuit Court of Appeals. I ask our readers to review this case and send me a oneto three-page analysis of the decision for possible publication in the Journal. I am looking for your thoughts on the issues raised in the case, your opinions about the decision and the reasoning, and your ideas about the implications of the case. Because this issue of JIER is concerned with sexual harassment, the case deals with that topic and with the enforceability of a predispute agreement to arbitrate sexual harassment and, by implication, other statutory issues. The case involves a hostess in a restaurant who was pinched and patted by her supervisor, complained, and quit when the company did nothing to rectify the situation. When she threatened to sue, the firm insisted on the enforcement of an agreement to arbitrate all such disputes. In the literature that deals with the arbitration of labor and employment disputes, one can find literally hundreds of articles on the arbitration of disputes that involve public policy or statutory issues. I ask that your analyses focus on the organizational, managerial, human, and ethical issues involved rather than on the technical and legal issues associated with predispute agreements to arbitrate. Please send your replies to: Charles J. Coleman, Editor Journal of Individual Employment Rights 19-21 Potter Street Haddonfield, NJ 08033","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127831647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.2190/UJK0-HF6J-437Y-UD5P
D. Little
Employer liability for supervisory conduct in the area of sexual harassment was addressed by the Supreme Court in 1998 and by the EEOC in 1999. The Equal Employment Opportunity Commission reports that sexual harassment remains a pervasive problem in the American workplace. The number of sexual harassment charges filed with the agency and its state counterparts more than doubled between 1991 and 1998 [1]. In 1998 the Supreme Court rendered two significant decisions that changed the focal point in such sexual harassment cases. This article discusses those decisions, their impact on the landscape of sexual harassment law, and possible employer responses. OVERVIEW OF THE LAW OF SEXUAL HARASSMENT Apparently no employment sector is exempt from allegations of harassing behavior. Even the annual report on Texas state judicial conduct for 2000 contained two instances of employer harassment. An appeals court judge was issued a public warning for kissing an employee during court hours, an action that was uninvited and unwelcome. Further, a special master was issued a public reprimand for making an employee participate in the following game as a condition of employment. The judge “would bind the employee’s hands behind her back, tie her ankles, and gag her with a scarf. While the employee was bound and gagged, the judge would watch scenes from his personal collection of ‘bondage’ videos” [2, p. 305].
{"title":"New Twist in Sexual Harassment Cases: Faragher and Ellerth","authors":"D. Little","doi":"10.2190/UJK0-HF6J-437Y-UD5P","DOIUrl":"https://doi.org/10.2190/UJK0-HF6J-437Y-UD5P","url":null,"abstract":"Employer liability for supervisory conduct in the area of sexual harassment was addressed by the Supreme Court in 1998 and by the EEOC in 1999. The Equal Employment Opportunity Commission reports that sexual harassment remains a pervasive problem in the American workplace. The number of sexual harassment charges filed with the agency and its state counterparts more than doubled between 1991 and 1998 [1]. In 1998 the Supreme Court rendered two significant decisions that changed the focal point in such sexual harassment cases. This article discusses those decisions, their impact on the landscape of sexual harassment law, and possible employer responses. OVERVIEW OF THE LAW OF SEXUAL HARASSMENT Apparently no employment sector is exempt from allegations of harassing behavior. Even the annual report on Texas state judicial conduct for 2000 contained two instances of employer harassment. An appeals court judge was issued a public warning for kissing an employee during court hours, an action that was uninvited and unwelcome. Further, a special master was issued a public reprimand for making an employee participate in the following game as a condition of employment. The judge “would bind the employee’s hands behind her back, tie her ankles, and gag her with a scarf. While the employee was bound and gagged, the judge would watch scenes from his personal collection of ‘bondage’ videos” [2, p. 305].","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122582795","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-04-01DOI: 10.2190/XCJQ-JVWJ-X5L1-9214
Renee Storm
{"title":"Romance at the Workplace: The Issues, the Law, and Some Suggestions","authors":"Renee Storm","doi":"10.2190/XCJQ-JVWJ-X5L1-9214","DOIUrl":"https://doi.org/10.2190/XCJQ-JVWJ-X5L1-9214","url":null,"abstract":"","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127582623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.2190/YRFF-DXXK-GB0M-AEXF
J. Cumberbatch
Part V of the Labour Code of the British Virgin Islands seeks to protect certain employees against unfair dismissals and dismissals without just cause in keeping with the principles of the ILO 1963 Recommendation 119 and the 1982 Convention 158 and Recommendation 166 concerning Termination of Employment at the Initiative of the Employer. However, the Code does not expressly provide for direct access to the Court for an employee who alleges that he has been unfairly dismissed. Rather, he is entitled to seek a resolution of the issue by filing a complaint with the Labour Commissioner. If the Labour Commissioner fails to achieve a voluntary settlement after twenty-one days he must transmit the matter to the Labour Minister who shall then attempt to settle it. Should he fail to do so within thirty days, he returns the matter to the parties for, inter alia, "the pursuit of any legal action which may be available to them." In the face of such provision, is a dismissed employee nevertheless entitled to bypass these procedures and commence High Court action or raise unfair dismissal as a defense to an action? The author argues that based on legal principles, there ought to be no such entitlement and analyzes a decision to the contrary. In the second part of the study, the author examines the weakness of the protection against unfair dismissal afforded to Commonwealth Caribbean employees generally and suggests the need for reform. It has never been seriously suggested that the courts, sated with a diet of the weak gruel that is the workers' common law employment rights in the Common wealth Caribbean [1], are best placed to protect what might be called the new
{"title":"By Any Means Unnecessary: Court Action and the Conciliation Procedure for Unfair Dismissals in the British Virgin Islands","authors":"J. Cumberbatch","doi":"10.2190/YRFF-DXXK-GB0M-AEXF","DOIUrl":"https://doi.org/10.2190/YRFF-DXXK-GB0M-AEXF","url":null,"abstract":"Part V of the Labour Code of the British Virgin Islands seeks to protect certain employees against unfair dismissals and dismissals without just cause in keeping with the principles of the ILO 1963 Recommendation 119 and the 1982 Convention 158 and Recommendation 166 concerning Termination of Employment at the Initiative of the Employer. However, the Code does not expressly provide for direct access to the Court for an employee who alleges that he has been unfairly dismissed. Rather, he is entitled to seek a resolution of the issue by filing a complaint with the Labour Commissioner. If the Labour Commissioner fails to achieve a voluntary settlement after twenty-one days he must transmit the matter to the Labour Minister who shall then attempt to settle it. Should he fail to do so within thirty days, he returns the matter to the parties for, inter alia, \"the pursuit of any legal action which may be available to them.\" In the face of such provision, is a dismissed employee nevertheless entitled to bypass these procedures and commence High Court action or raise unfair dismissal as a defense to an action? The author argues that based on legal principles, there ought to be no such entitlement and analyzes a decision to the contrary. In the second part of the study, the author examines the weakness of the protection against unfair dismissal afforded to Commonwealth Caribbean employees generally and suggests the need for reform. It has never been seriously suggested that the courts, sated with a diet of the weak gruel that is the workers' common law employment rights in the Common wealth Caribbean [1], are best placed to protect what might be called the new","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115349596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.2190/LFKD-U6F2-7W9E-9XM8
Stephen Moniak
{"title":"A Call to State Legislators: It is Time to Take Inventory of a Former Employee's Ability to Access His/Her Personnel File Under Your State Statute","authors":"Stephen Moniak","doi":"10.2190/LFKD-U6F2-7W9E-9XM8","DOIUrl":"https://doi.org/10.2190/LFKD-U6F2-7W9E-9XM8","url":null,"abstract":"","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123659065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A recent survey of the mental health of Canadian workers has suggested that the use of information and communications technologies (ICTs) such as wireless e-mail devices either maintains or increases employees’ level of stress. This article explores this finding in more detail and concludes that individual coping strategies employed by workers to minimize the impact of stress are threatened by the ubiquitous communication delivered by ICTs. This in turn can have a negative impact on employee mental health and consequently may lead to negative organizational outcomes. The concept of the technologically tethered worker is introduced, and several propositions are developed for future empirical study. In a recent survey of the health of Canadian workers commissioned by Desjardins Financial Security it was reported that 62 percent of workers claimed they had some form of information and communications technology (ICT) such as a cell phone, wireless e-mail device, personal computer, or pager that allowed the employer to reach them at any time [1]. Furthermore, 54 percent of these workers reported that the use of ICTs maintained their existing stress level, while 29 percent reported an increase in their level of stress through the use of this technology [1]. Given that stress has a direct impact on the mental health of
{"title":"\"Who's Running the Machine?\" A Theoretical Exploration of Work Stress and Burnout of Technologically Tethered Workers","authors":"W. Murray, Adam Rostis","doi":"10.2190/IE.12.3.F","DOIUrl":"https://doi.org/10.2190/IE.12.3.F","url":null,"abstract":"A recent survey of the mental health of Canadian workers has suggested that the use of information and communications technologies (ICTs) such as wireless e-mail devices either maintains or increases employees’ level of stress. This article explores this finding in more detail and concludes that individual coping strategies employed by workers to minimize the impact of stress are threatened by the ubiquitous communication delivered by ICTs. This in turn can have a negative impact on employee mental health and consequently may lead to negative organizational outcomes. The concept of the technologically tethered worker is introduced, and several propositions are developed for future empirical study. In a recent survey of the health of Canadian workers commissioned by Desjardins Financial Security it was reported that 62 percent of workers claimed they had some form of information and communications technology (ICT) such as a cell phone, wireless e-mail device, personal computer, or pager that allowed the employer to reach them at any time [1]. Furthermore, 54 percent of these workers reported that the use of ICTs maintained their existing stress level, while 29 percent reported an increase in their level of stress through the use of this technology [1]. Given that stress has a direct impact on the mental health of","PeriodicalId":371129,"journal":{"name":"Journal of Individual Employment Rights","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114187171","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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