RUNNING HEAD: Employment Law and Discrimination Paper

Employment Law and Discrimination Paper

Steven Schear
LAW/531
August 29, 2015
Susan Purvin

RUNNING HEAD: Employment Law and Discrimination Paper

Employment Law and Discrimination
The sexual harassment case presented is a complex, but a good example of a sexual
harassment lawsuit gone wrong. The behavior of the employees is not a norm in some
organizations, however is has been accepted within the organizations workplace that Johnathan
Silverstein and Meredith Shaw work for. Sexual commits and conversations within the
workplace will at some point lead to problems and should be monitored by management. The
case analyzed demonstrates what may happen. This is way employer must safeguard the
organizations interests and employees welfare.
Elements of this cause of action
The Plaintiff, Johnathan Silverstein, is suing Meredith Shaw for sexual harassment based
on the fact that she placed a sexy screen saver within his computer and as a result his supervisor
saw the screen saver. The Plaintiff claims he lost a promotion based on the actions of the
Defendant. It is vital to consider that the sexual conduct was unwelcome. Does Johnathan
Silversteins response fall within the reasonable person standard? Should the employer be held
liability for the sexual harassment incident? Does the sexual harassment claim provide evidence
to prove the possibility of corroborative evidence? The last area to consider in this case if the
evidence the Plaintiff presented in a claim credible?
Applicable defense
An applicable defense in this case is that the behavior was unwelcome. However, the
judge ruled that the Plaintiff took part in the behavior before and the only reason he is doing
something about it now is because he believes it cost him a promotion. The Plaintiff admitted

RUNNING HEAD: Employment Law and Discrimination Paper

that he had never told the Defendant to stop or that it made him feel uncomfortable. He also
admitted that he did not inform the supervisor or the Human Resources Department about the
Defendants behavior. According to Exhibit C, the complaint procedure for an employee is to
report it immediately to the Department of Human Resources or report it to a member of
management/ownership. The fact remains that the Plaintiff did not report the behavior to either.
Judge's ruling
The basis for the Judges ruling was that the Plaintiff took part in the behavior previously
and the only reason for doing something about it now was that he believes it cost him a
promotion. The Judge pointed out that Johnathan Silverstein failed to mention the Defendants
behavior in the past and did not mention it to his supervisor. The Judge found that Mr. The
Plaintiffs feedback to the Meredith Shaws behavior was irrational because he wouldnt have
had an issue with the screen saver if the supervisor hadnt seen it. The behavior at the company
was consider a normal occurrence within the workplace. Also, the Judge found that there was no
proof that Mr. Silverstein would have gained the promotion if it werent for the sexy screen saver
that Ms. Shaw put on his computer.
Potential civil liability
The potential for possible liability of the harassment by the coworker is possible based in
the harassment involved during the harassers history of employment of the employer the not
able to determine the defense that was imposed was practicable to prevent a harassment
complainant by an employee (Roberts, 2001). Since the Defendant was not in a administrative
position, the employer cannot be held vicariously liable for the sexual harassment. Mr.

RUNNING HEAD: Employment Law and Discrimination Paper

Silverstein did not report the behavior to human resources or a member of management, the
employer cannot be held liable for failing to take prompt, remedial action (source). Since the
Judge ruled that the behavior of the Defendant was not unwelcome and the Defendant was not in
a supervisory position, the employer will not be liable for the conduct (Bland & Stalcup, 2001).
Employees who sexually harass their co-workers can be held liable for their own actions, either
facing civil claims or even criminal charges.
The California Fair Employment and Housing Act protects employees as well as
independent contractors. The California Fair Employment and Housing Act prohibits harassment
of employees, applicants, and independent contractors by any persons and require employers to
take all reasonable steps to prevent harassment (California Department of Fair Employment and
Housing, 2010). Employers can be held liable for harassment of employees and independent
contractors within the workplace. According to The Civil Rights Act of 1964 Title VII, it makes
no difference, whether the person whose acts are complained of is an employee, an independent
contractor, or for that matter a customer (Willey & Butera, 2015). Whether an employee or an
independent contractor, the sexual harasser is liable for their actions, either civilly or criminally.
However, if the employee is working in a supervisory capacity, the employer may be held
vicariously liable.
Conclusion
The case of Johnathan Silverstein verses Meredith Shaw for a possible sexual harassment
lawsuit clearly showed how the behavior of employees can lead to this type of problem. The
Judge in this case ruled properly because the Plaintiff may have been unhappy that he was
overlooked for promotion and took it out on the Defendant. It is vital the employers protect the

RUNNING HEAD: Employment Law and Discrimination Paper

organization, employees, and management, but without a proper monitoring system it will fail. In
this case the employer and the employees failed to prevent a problem from occurring. Employers
can educate their employees and management to assist in the prevention of sexual harassment
cases. The organization failed in this case because sexual commitments and behavior should be
allowed in the workplace and it was. Learning how to determine how to prevent this problem can
be half the battle within a business without proper supervision. The organization in this case will
continue to have problems, if they do not stop the behavior of its employees and management in
the future.

RUNNING HEAD: Employment Law and Discrimination Paper

References
Bland, T. S., & Stalcup, S. S. (2001). Managing harassment. Human Resource
Management, 40(1), 51-61. Retrieved from
http://search.proquest.com/docview/222063028?accountid=458
California Department of Fair Employment and Housing. (2010). Retrieved from
http://dfeh.ca.gov/
Roberts, P. (2001). Employers' Liability for Sexual and Racial Harassment:
Developing the Reasonably Practicable Steps Defense. Industrial Law Journal,
30(4), 388-395.
Willey, E. K., & Butera, J. J. (2015). THE CIVIL RIGHTS ACT OF 1964 AT 50: PAST,
PRESENT, AND FUTURE. Boston University Law Review, 95(3), 683-686.
Retrieved from http://search.proquest.com/docview/1691409851?accountid=458