However, the conduct explicitly or implicitly affects the environment of the workplace (Grumman, 2012). In respect to the civil code in the section, 52. 1 of the United States protect the individuals against the infringements of enjoying their rights. It also states that if anyone is coerced, a court order is obtained so as to barn these misconduct and be awarded in the form of money because of emotional distress. The court can grant the injunction that prohibits cohesion behaviors in the workplace. The housing act and fair employment declares that it is individuals’ civil right to old employment position without discrimination.
Therefore, the policy of the state is to protect and safeguard the civil rights of individuals. The institutions are bound to protecting the employees against any form of discrimination and ensure that the employees comply with the set laws on misconduct. In Merman’s case, he violated these state laws by discriminating women through unwelcome sexual harassments. Merman chose to touch the private parts of women without their consent. It evident that the damage caused to the women is tangible since Merman went ahead and coerced one of them to go n a date with him.
By doing so, he expects the woman to respond by going on a date under duress because of the threat of losing her job (S. I, 2009). It is also against the law for Merman to discriminate women based on her position at work. In consideration that Merman holds a senior position in Studio Five Park, he uses his powers to threaten one of the employees to go on a date with him. By virtue of him being a senior, the statutory act of 1964 prohibits such misconduct in the workplace. In the case law between William v. Seabed in 1 976, the Court held that sexual harassment is a form of sexual coordination.
Sexual demands by male supervisor such as Mr.. Merman in our case against female employee if such an allegation is proven. This is deemed as an artificial barrier towards one of the gender in the workplace. In 1977, between Barnes v. Costly, the court of appeal ruled that, in case a female employee is retaliated when they reject the sexual advancements by the senior employee. It is violation futile seven which prohibits discrimination of sex. Mr.. Merman threatened junior employee to go on a date hence violated this provision (Weiss, 2010). Did Man. An commit sexual reassessment? If so, what type? Explain your answer and the terms you use. Yes, Mr.. Merman committed sexual harassment when he touches the breast of the lady unwelcome. The sexual act prohibits any person to touch and demand for Sex. It is clear from his action that he is an opportunistic person who takes advantage of the women who are naive on their civil rights. The civil act of 1 991 prohibits any sexual harassment to anyone. He demanded for sex from the woman hence is against the civil right of 1 991 2009). In the case law of Merits Savings, IFS V.
Vinson the court held that Title VII orbits any sexual harassment of creating a hostile environment for fellow workers. This demonstrated that Mr.. Merman committed sexual harassment by creating a hostile environment of a fellow worker. His behavior clearly shows a person who violated the civil act of 1991 by sexual harassment to women. Sexual harassment is defined as any unwelcome act of sexual advances, demand for sex and any other sexual behavior, which interferes with the work environment, work performance, and the victim’s employment (Grumman, 2012).
They are novo types of sexual harassment; Quid Pro Quo and Hostile work environmental sex harassment. Quid Pro Quo is a sexual harassment that the authorities uses to punish the victim’s when they fail to comply with sexual demands and the victim has a tangible loss while hostile work environment is when the victims suffer from anyone but the suffering is severe or pervasive , the victim has no tangible loss The sexual type he committed is environmental. This is because he touches the breast of the woman in which there is no tangible loss, but the woman was sexually harassed.
This because the Merman has been practicing this behavior for a long time and the management was supposed to have known. The harassment to the woman was detrimental because she suffers public humiliation (Grumman, 2012). What actions and steps should Studio five take against Merman? Explain what actions you considered and why you either recommend them or reject them. The first action that the firm should have taken is to investigate the sexual harassment complaint filed by the woman against Mr.. Merman.
This is to help ascertain the truthfulness of the complaint files by the woman and to determine the level of the damage if Mr.. Merman liable so that corrective disciplinary measure is taken against him. The significant of investigation helps to protect the rights of both parties involve in the case. The second step is for the firm to take an affirmative action. This is to seek an informal resolution through a separate discussion between the woman and Mr.. Merman. This facilitates In-depth analysis of the situation so that the firm can come up with reasonable judgment for the problem (Weiss, 2010).
If Mr.. Merman if found guilty and liable for his action. The company has the right to invoke the rule against sexual harassment and discipline him appropriately according to the laws that do not negate the bill f right or civil act of 1994. The company fails to follow the due process when terminating Mr.. Merman because it is evident that there was no investigation taken to ascertain sexual harassment complaint by the woman. In addition, the firm did not take any affirmative action when terminating him.
This is a total disregard for the law because you are innocent until proven guilty (S. I, 2009). The case of Hager v. Reclamation Didst in 1 984, the Court ruled that the due process must be followed to protect the rights of affected parties. The firm just terminated Mr.. Merman without giving him a chance to defend myself. This shows that the company failed to observe the due process hence they violated the rule of natural justice. Discuss Merman is allegation that he is being discriminated against based on his disability and what response Studio Five may have to that allegation.
What would each of them have to prove in court? Merman alleges that he is being discriminated against because of the nature of his leg. However, it should be understood that the success of Merman is not because of his disability but because of his seniority in the company. This allegation is baseless because Merman has violated the evil right of the woman and hence is liable, Merman may claim that it was because of accident that he ends up touching the private parts of the woman (Grumman, 2012).
The liability to Merman is going forward and attempting to force a woman to go on a date. In law, forcing someone to accept the sexual advancements is a wrong doing. The response that Studio Five should give is that the ‘discrimination arises from the disability’ and that since the nature of the leg was unknown to anyone then the strong defense in the court is that the company did not know or could have been expected to know of the condition of Merman.
However, the company should argue that by knowledge requirement, the company’s internal provisions on how to discipline members of staff involved in sexual harassment. For Merman to build a stronger legal case, he must prove that the company should have been reasonable in knowing his condition and to prove that his physical condition contributed to him touching the private parts of a woman (Weiss, 2010). Merman should also argue that he was terminated immediately without ascertaining the cause of his involvement.
As a plaintiff, he should proof that the company has more than 15 members and hence should be overfed under Americans with Disabilities Act He should also proof that his life activity is limited by his disability such as walking or the nature of his leg affected the posture hence accidentally touched the woman. The company as a defendant should proof in the court that Manna’s disability did not affect his major activities. They should provide evidence that the company’ s success is as a result of normal performance hence was not limited by the nature of the leg.
They should also proof that Merman ‘s gross misconduct because of sexual harassment contributed to his dismissal and not because he is disabled. The defense should also prove the precedence of company’s former employee who was not disabled and was terminated on the similar basis of sexual harassment (Sal, 2009). In the case law between Sutton v. United Airlines, the act of 1990 prohibits covered employees from discriminating people with disabilities It also defines disability as physical or mental impaired individuals with limited major life activities.
The petitioners in this case law were twin sisters with the myopic disorder, who applied for commercial airliner and were denied a chance due to uncorrected acuity. In the real sense, with correction, both could work identically. For Mr.. Merman, he does not suffer from major limited activities hence the defendant (company) can use this against Merman (Grumman, 2012). In 1 999, the case between Murphy v United Parcel services, Inc . A person is regarded as a disable within the meaning if an entity mistakenly believes a person actual or non-limiting impairments limits ones’ major activities.
Merman must put forward proof that he is regarded as the person who is limited in performing his duties in the company. If the female employee sues Studio Five Theme Park, what defenses can Studio Five use? Are they liable for Merman’s conduct even if they were unaware of and did not approve of Merman’s actions? Explain your answer and the terms you use. If the female employee SSL_sees the company for the damage, the company uses the defense that when the harassment was reported, the company responded by taking an immediate action from the termination of Merman.
This response by the employer is proportional to the nature of the harassment that the female employee suffered from (S. L, 2009). An employer should also provide that they have put in place anti-harassment policies that they do not tolerate harassment based on sexual orientations. It should also demonstrate to the court that supervisors and junior employees understand their responsibilities under the set policies. However, it should indicate that the mistakes done by the employees are as a result of a failure of the woman to be responsible within the environment that facilitated the sexual harassment.
In 1998, the Supreme Court ruled in the case between Burlington Industries, Inc. V. Albert held that the employer is liable for any unwelcome sexual advances by the superior to other employees even if the company does not know of the occurrence of the misconduct and even though the victim of harassment goes not suffer any tangible consequence. The company must provide in the court the evidence that Merman as senior is thus liable since Merman is a senior employee and the damage caused to the lady is not deemed to be so tangible (Grumman, 2012).
By the adoption off policy to mitigate sexual harassment, the Supreme Court also provided vicarious liability as a strong defense affirmative action. It ensures that the company has affirmative defense such as in the case between Mentor v. AGO Corp.. , the court held that the sexual harassment policy by the employer and the manner of espouse to the claims of harassment by the plaintiff is reasonable and meets the criteria hence plaintiffs sexual harassment claim was dismissed. The company should use the affirmative defense to respond to the woman if she decides to sue.
Vicarious liability is a tort doctrine that may impose the responsibility of one person over the other. The burden of having a responsibility and a special relations exist, an example is the responsibility of employer towards the employee. In exercising such care, it is assumed that it is with the prudent and reasonable person under the similar circumstances Weiss, 2010). The affirmative defense is a fact other than the Ones alleged by the plaintiff or even the prosecutor which if proven by the defendant automatically mitigates the legal consequence of the defendant that could otherwise constitute unlawful conduct.
It is justification of the defendant that the crime was committed, but it differs from other crimes since the defendant admits to breaking the law but seeks to prove of having a good reason for doing so and seeks to be excluded from any legal liabilities. What is the legal nature of Merman’s employment? Explain your answer and the terms you SE. Contract of employment is the agreement between the employee and employer. It arises because of the relationship in the employment. It must not be in writing but legally binding, and there is an existence of the mutual confidence and trust.
They are two types of contact implied and express. Express contract is a contract in which the parties concern set out explicit rules to govern them. The contract is in written form or oral but must be the seal. All the elements must be clearly stated Implied contract is a contract agreement between the concern parties that arises due to the circumstance thou a written expression. The denial of it results to unfair enrichment between the parties involve. The parties involve established the principle of equity among themselves (S. , 2009). The legal nature of Merman employment is implied employment contract. This is because the management accepted Merman to entertainment their guests. He was a senior a member in the studio Five Theme Park. This is a clear evidence that the firm had Merman had a mutual agreement for him to work there. Merman worked for several years because he rose to various rank in the employment until he became a senior member Of the firm. Therefore, this demonstrated that the firm entrusted him with the responsibility of representing the company.
This shows that an implied contract of employment existed. If Merman was a member off union that had a collective bargaining agreement with Studio Five, Would that change any of your previous answers? If so, why? If Merman was under the Union, the rights of the plaintiff are not different even if one is in a union. This right is to be free from any discrimination on the basis of disability but the advantage is that one is entitled to mediation, arbitration among other processes that will alp Merman deal with his case on termination of his contract.
The union could help Merman identified,’ if the employer has violated the terms of the union contract hence he could not have been terminated immediately without further investigations into the allegation that he committed sexual harassment (Grumman, 2012). The union could also have made sure that Merman obtained a legal contract in the form of writing -in doing so; Merman could be classified as a person with disability hence is covered under the discrimination act. By virtue of Merman being known as a disable, his case could have a stronger basis in the court.
His termination could have been in an organized, and the investigations done in detail and pr©cited manner (Weiss, 2010). In the collective bargaining agreement, the union would bargain on the behalf of Merman. This fundamental right of a union member enables one have more powers than if one tends to negotiate as an individual. Maybe Merman could not have been fired immediately since the union could demand just cause’ unlike most of the employees who are fired without tangible reasons. What types of company policies, procedures, and actions should businesses employ to avoid harassment of their employees?
The company should give new employees a copy of the company policies about sexual harassment. This alone might be insufficient if the employees do not understand the company policy. Therefore, they should be trained and teach their right about sexual harassment and the importance of adhering to it. The company should post their company policies in the public places. This facilitates for the employees and the public to learn the hence mini minimizing the occurrence. The company should also organize forums that are mandatory for the employees so that they are taught on the significance of respecting another gender (Grumman, 2012).
The company should come up with strict policies of sexual harassment that is within the law. These laws should be applied to everyone regardless of their position if they are found liable for the offence. This would create an environment where people respect the privacy of others as enshrine in the bill of right. It also promotes fairness because no able would feel that he/she is above the law. This will send a strong signal to any employee on the seriousness of the case. All stakeholders concern to be included when coming up with anti-sexual policies. This would ensure everyone concern is protected.