Вы находитесь на странице: 1из 8

Management Final

1. Work Place Harassment

Workplace harassment is any unwelcome written, verbal or physical conduct that shows some kind of hostility towards another person on the basis of race, sex, color, nationality origin, sexuality, religion, sexual orientation or age or some sort of disability that is intentionally or purposefully creating an intimidating hostile or offensive work environment. A disability that has a purpose of unreasonably interfering with an employees work performance or affects an employees employment opportunity of compensation. There are several symptoms of harassment which includes excessive physical contact, negative statements about religions, race, age etc. It also includes bullying or intimidating your coworkers or using your workplace as a dating pool. Sexual harassment violates both the state and the federal law if it involves discriminatory treatment based on race color sex and religion because the employee opposed the job discrimination and participated in an investigation or complaint under the EEOC. However it should be clear that the law does prohibit from offhand comments or simple jokes. Infact, the harassment should be frequent or severe to create a hostile environment at work which must result in a tangible employment action such as hiring, promotion or firing . There can be different type of work place harassment such as sexual harassment, racial harassment, disability harassment or creating a hostile work environment for your coworker. An individual qualifies for a supervisor if the individual has the authority to mention tangible employment decisions affecting employee or if the individual has authority to direct the employee's daily work activities. A supervisor is the boss and must act like boss at all times. The supervisor must be the leader to show how all the employees should act. A supervisor may have to deal with quid pro quo. Quid pro quo can lead to a tangible action such as promotion or demotion for such actions. A supervisor can also liable for hostile working environment. This can stop or impede the employee for performing for performing its essential job functions. An employer may be held legally responsible for work place harassment if the employer does not have clear and precise work harassment policy. An employers work harassment policy should make clear that an employer will not tolerate any kind of harassment based on sex, race, color, nationality origin etc. The workplaces include the entire place where business is conducted for the employer and will not tolerate retaliation against anyone who complains of harassment or participates in the investigation. An employer should be responsible for creating a work place environment where employees are comfortable in bringing concerns to the management. If the supervisor does not feel a

proper friendly environment exists he can make his defense on such basis. Therefore a safe work place environment should begin with managers and their attitudes towards those they supervise. An employer complaint procedure is as genuine and valid as the attitudes of the managers towards it. A defense can be raised against the employer if he does not take proper actions or procedures required to investigate a harassment complaint. An employer can be held responsible if the employer witnessed or said something about the behavior that he might have reasonably known about it. If the company doesnt have any policies against sexual harassment or if the harassment occurred in front of a lot of people than the employer should have known about it. The other criteria that must be met to hold an employer accountable for this type of sexual harassment is that the employer has to have made no reasonable attempts to end the sexual harassment. The supervisor must then be sure when it investigates it documents and writes everything down for proof and does a complete through investigation by having written statements of everyone interviewed. All possible information should be linked together and if the supervisor has not corrected his actions then further actions such as demotion or firing should be considered. The employer must take corrective actions then if they fire the supervisor. The employer must then make sure to follow up after the incident and make sure that the harassment is not happening once again. Let the employee know that if it does to make sure that they let you know. An employer can defend himself from such claims if he can prove that proper sexual harassment policies are enforced at the workplace. Another way is to take immediate steps of investigation and filing a corrective action form. The disciplinary measures should be in proportion with the seriousness of the matter. For example if a coworker believes that she is being sexually harassed at the workplace by her supervisor and approaches the employer than the employer should make sure that she understands the type of sexual harassment and the specific laws maintained so that she has all the relevant information to create a case against the supervisor. If the employer fails to do so he will be held legally responsible for not taking proper steps and if he does do it and has clear documentation such as corrective action forms to prove that necessary steps were taken he can raise his defense then. Question 2 If you believe that you have been discriminated against by an employer, labor union or an employment agency because of race, sex, color and religion or have been prohibited from participating in an EEOC, then you can file a charge of discrimination with the US EEOC. The charge then maybe investigated by the EEOC Texas workforce commission (TWC). If the charge is filed within 180 days. The complaint must be resolved within 180 days. The EEOC charge is deemed filed if the employee makes a filing that includes a request for the EEOC to take remedial action to protect the employees rights or otherwise settle a dispute between the employer and the employee.

1. The charge must be made in person by mail or office of commission with any designated representative of the commission. 2. A charge shall be in writing signed and verified . 3. Each charge should have the following the full name, address and telephone number of the person making the charge, a clear and concise statement of the facts, a statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a State or local agency 4. The employer is the notified and the response is requested. 5. Then is the stage of collection of all documents, records and testimony. 6. After that is the determination stage. The commission may bring a civil action against any respondent named in the charge within thirty days from the date of filing a charge. 7. Either the case is dismissed with no cause or determination since it cannot be resolved within 180 days or there is a determination of cause which is then sent to the employer. If the case is dismissed then you will issued the right to sue which is a letter that gives you 90 days to file your own lawsuit. 8. If they find a cause then it goes straight to conciliation. In conciliating a case in which a determination of reasonable cause has been made, the Commission shall attempt to achieve a just resolution of all violations found and obtains an agreement that the defendant will refrain from actions with an affirmative relief, Where such conciliation attempts are successful, the terms of the conciliation agreement shall be reduced to writing and shall be signed by the Commissions designated representative and the parties. A copy of the signed agreement shall be sent to the respondent and the person claiming to be aggrieved. Where a charge has been filed on behalf of a person claiming to be aggrieved, the conciliation agreement may be signed by the person filing the charge or by the person on whose behalf the charge was file. 9. After conciliation a settlement is reached or the case is dismissed. A charge filed within 180 days of EEOC alleging both state and federal laws is a timely charge as claimed by both state and federal laws. EEOC cannot accept charges regarding TCHRA claimed filed after 180 days but can accept the charges regarding federal laws.

QUESTION 3

A corrective action form is a useful tool for any employer. It permits an employer to document employees workplace offenses, as well as decide on an action plan for both improvement and effect in case the offense happens again. Objectives and parts The corrective action forms contain a field about employee information. This includes the name of employee, the name of supervisor and the time and date which is extremely important. The date and time will allow the employer to ensure that this isnt the first time such an action is done by the employer. The corrective action form documents the reason for the requirement of the corrective action. It explains why the employee performance was unsatisfactory or against regulation. This should be in as much detail as possible and should consider all the facts after some investigation. The forms contain a section under the subheading "required improvement". This section of the corrective action form allows documentation of how you expect employee performance to improve, as well as a reevaluation date. Create a signature line for employee evaluation coordinator, employee, and supervisor. All relevant signatures must be on the corrective action form to make the employee performance tool valid. Having all signatures on the form ensures that all parties are in understanding of the situation and what corrective action will be taken. All the facts and objectives should be stated correctly. If the employer refuses to sign the form then it should be documented that the employee did receive the corrective action form but refused to sign. After that the corrective action form should be taken very seriously. A good reason to have a corrective action form is that employer can make sure on writing to prove that they have been fair and consistent.

QUESTION 4 A retaliation case occurs if the company takes an action against an employee who filed a complaint about discrimination at the workplace. To claim a retaliation case an employer must first establish a prima facie case. They must establish three things a. Protected status The employee must prove that they are in a protected status and this may lead to an adverse action. i. File or Report a claim ii. File a complaint with your employer 1. If filed workers comp, then injury is enough evidence. iii. Participate in investigation. Give statement to EEOC. b. Adverse action

Anything that will dissuade a reasonable person to file a complaint. Ex. Firing, demotion, cut of pay or a meritorious action cannot be an adverse action because it does not dissuade a reasonable person c. Causal Link: in order to make sure that you link both protected status to adverse action. Connect one flow to another. I. The purpose of anti-retaliation statue is to protect those who complain of workplace discrimination and also those who provide assistance with a discrimination claim. The employees should be free to report a claim without any negative consequences to their work conditions. ii. Title VII prohibits an employer from retaliating against an employee who has made a charge, testified, or participated in any charge of unlawful discrimination under the Act. To prove retaliation, a plaintiff has to show, among other elements, that he or she suffered an adverse employment action. Protected activity includes discrimination against sex, race color and religion, opposition to a practice believed to unlawful discrimination. Opposition is protected from retaliation as long as it is reasonable and in good-faith belief that the complain of antidiscrimination law and the manner of the opposition is reasonable. iii. An employer should always evaluate the given situation effectively in order to avoid himself against any protected litigation. Actions that may or may not be deemed as retaliatory conduct by an employer are following. Not deemed retaliatory 1. If the action is properly supported by documentation. 2. If there is a presence of an unbiased observer who thinks the action was reasonable 3. If the employer applies the same situation to his best employee and evaluates what would be done if that employee would have been treated the same way. 4. If the proposed action is consistent with employers actual practice when presented with same deficiencies and performances or misconduct. Deemed retaliatory 1. 2. 3. 4. If not supported by proper documentation If the proposed action is not consistent with employers practices. If the employer does not have prevent retaliation policies If the employer does not handle or discipline the the employee with care after the employee has charged the claimed of harassment 5. If no corrective action is taken by an employer

iv. The following can be considered the circumstantial evidence of retaliation 1. The defendant produces an evidence of a legal non retaliatory reason for the action that was challenged. 2. The complainant proves that the reason given by the respondent is a pretext to hide the retaliatory move. 3. Usually the causal link is demonstrated by the fact that an adverse action shortly occurred after the protected activity or the person who took the adverse action was aware of the complainant protected activity. 4. An inference may also arise if the time period between the protected activity and the adverse action was long. 5. Evidence raises inference that retaliation was the cause of the challenged action;

Question 5 In order to determine the employer physical restrictions, it is important for an employer to first find if this qualifies as a FMLA or ADA leaves. The employee has a right to accept either one of these because they both give a qualified employee who has worked more than 1250 hours in the last 12 months. In analyzing the employee leave situations there are four parts with respect to the ADA or FMLA leave 1. Only the ADA applies; 2. Only the FMLA applies; 3. Neither law applies; or 4. Both laws apply. The FMLA operates and expands to certain rights available under ADA. To qualify for fmla
I. II. III. IV. Adoption or foster care of a child. Birth of newborn child Employee has serious health condition that doesnt let them perform the essential job To take care of a spouse, child, parent with a serious health condition.

FOR ADA

An employee is considered to be an individual with a disability if they: Have a disability; Have a record of a disability; or Are regarded as having a disability If they have a serious health condition that requires continuous care by the health provider. 5. There is inpatient care available A disabaility is physical or mental impairment that limits substantially one or more life activities. ADA is considered to be permanent while FMLA is temporary
Based on the case in the given question, it is clear that the person will be qualified for ADA as the physical restriction is permanent. The employment issues that an employee will face will be dependent upon his day to day activities and essential job functions. Because of the disability the employee is now unable to perform the essential job function and is restricted. Federal laws prohibit discrimination on the basis of ADA for any employer who has more than 15 employees. Another ADA provision is the association that protects applicants and employees from discrimination bases on a relationship or association with an individual with a disability. The ADA requires that an employer provided the qualified applicants with reasonable accommodation and must at all cost avoid treating the employee differently under any given circumstances. A reasonable accommodation includes the consideration that the employee can perform its essential job functions.

1. 2. 3. 4.

Legal benefits to employee: Any person who believes that his or her employment rights have been violated due to a disability and wants to make a claim against an employer must file a "charge of discrimination" with the EEOC. The EEOC will notify the employer for the charge and may ask for responses and proper support. The EEOC will determine if there was any reasonable clause of discrimination and if the charge cannot be solved an employee can file a court action. If no discrimination found then the charge is failed which again allows employee to file a charge in the court An employer should keep themselves protected by not pursuing actions which may lead them to a court case by an employee. Therefore, they should avoid any discrimination on terms of promotion in future of employee and should treat the employee equally as other employees. The employee should be protected under all circumstances in future from unreasonable actions on behalf of the employer. The employee should also be disciplined about their ADA laws and

how they are protected under such laws clearly. An employer should document all such actions for future support and keep evaluation of the employee to be fair and consistent.

Вам также может понравиться