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Preparation Guide 7

Unlawful harassment in the workplace falls within the federal state of discrimination and therefore lies in violation of the Title VII of the Civil Rights Act of 1964 and other federal authority. One of the underlying problems of calling upon the above statue is that its interpretation can fail to encompass sexual harassment by persons of the same sex as a form violation of ones rights. This issue arose during the Oncale case where the district court dismissed the petition by the offended person on claims that the federal law did not regard same-sex sexual discrimination.

Vicarious liability refers to a tort doctrine that purposes to enforce the responsibility on an individual regarding the failure committed by another individual whereby the two harbor a special relationship. The doctrine assumes that an individual who harbors a particular legal relationship with another person has the responsibility on the latter’s act of negligence. Under this doctrine, persons such as the employer therefore harbor the liability of the negligent actions or omissions of their employees. Vicarious liability figures into claims of harassment by deeming the employer duly responsible for acts of harassment made his or her employees against other employees.

An employer can affirmatively defend against claims of vicarious liability by arguing that the facts of violation and ownership together call upon a prima facie rebuttable presumption that the employee committed the offense. With this regard, the ordinances and statues that are involved fail to render any of the inferred fact conclusive. Consequently, the presumption of vicarious responsibility is therefore revoked. The employer therefore argues that he or she is strictly liable for harassment that entails tangible employment action such as discriminatory reassignment or demotion. With this regard, the employer is able to raise an affirmative defense to liability successfully.

Another way is through contributory negligence. This often works in absolute defense. Under this defense, the employer can argue that the offended employee must have had prior knowledge of the risk involved and thus should take comparative responsibility for opting to continue working in light of the risks involved. In the Suders case, the employer could argue that the employee was harassed on various occasions but chose to continue working and thus should also be held responsible for her decision to work under the said conditions.

The factors that therefore establish harassment claims based on hostile environment are those that the employee did not have prior knowledge of the environment and where the employer failed to set up the necessary aspects to protect the employee from the hostile environment. The hostile environment must also be a result of a tangible employment action.

According to the Rankin case, the threshold question for consideration when an employee holding a public office asserts that their first Amendment rights have been violated is whether the speech entailed a matter of public concern. Another pivotal question for consideration is whether the speech has a greater concern in being said than the interest of the employer in suppressing such speech.

Although the first Amendment protects the rights of speech of the public employees from limitation by the government, the government bears the greater responsibility in the regulation of the speech made by its workers. According to the Pickering case, the balance is arrived between the interest of the employee as citizen in making a speech pertaining to public concern and the interest of the state as employer in enhancing the performance of the public services it is obliged to through its employees. This balancing act was also employed during the Pickering

Garcetti case whereby it was argued that public employees engaging in free speech while holding their official duties are not engaging in free speech as citizens with regards of maters of public concern but as government employees. With this regard, Rankin has not survived Garcetti because in all cases, the plaintiff’s First Amendment protection was disregarded because of their positions as government employees.

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