Controversial Case of Inappropriate Behavior at the Workplace

Introduction 

Marwan’s case presents a clear illustration of the significant impact discrimination poses in the workplace setting. Apparently, Marwan has been engaging in gross misconduct, and has for quite a while gone unpunished for the inappropriate behavior. While it is important to acknowledge the inappropriate nature of his conduct, one should not overlook the fact that it should be subjected to legal scrutiny. It is only through a rigorous legal analysis that one will establish a strong argument regarding the provided case. In this respect, this paper will focus on specific issues including; 

What are the civil rights laws that prohibit Marwan’s conduct with both his co-worker and the park guests? 

It is important to note that the provided case ought to be assessed on the premise of the employment laws. Hence, one can claim that Marwan’s conduct with his fellow co-worker is prohibited by the Title VII of the 1964 Civil Rights Act, Employment Non-Discrimination Act (ENDA), and the Civil Rights Act of 1991 (Deakin & Morris, 2012). Each of the mentioned sets of laws is designed to prevent workplace misconduct (discrimination) on the basis of sex and gender. The three acts define discriminative practices as any organizational activities that lead to the degradation or humiliation of a worker (Deakin & Morris, 2012). As noted in Marwan’s case, the female coworker was uncomfortable when he touched her breasts. Also, when she threatened to report him, he claimed that he would retaliate by getting her fired. The whole issue shows how helpless the female coworker appears in the face of sex discrimination in the workplace. From this point of view, it is obvious that Marwan violated two federal laws prohibiting discriminatory practices. First, he violated Title VII since it bans the discrimination of both private and public employees because of sex, color, nationality, or religion. In this case, he breaks the law when he threatens to retaliate if reported. Second, he breaks the law by touching her breast. Notably, the US constitution defines sexual harassment as unwanted sexual behavior (Posner, 1989). Therefore, the fact that the female coworker is against it shows that she was harassed by her superior. 

As for the guests at the park, the case seems null and void (invalid) especially since they failed to take the matter seriously. As noted, some of the women might have been comfortable with the sexual advances while others were too surprised to respond. Such a sentiment shows that the law does not apply to the park guests as they did not find his behavior inappropriate. However, the ones who were not sure how to respond might take legal action after understanding their civil rights. Perhaps, they might borrow a leaf from the coworker regarding her choice of action. 

Did Marwan commit sexual harassment? If so, which type? 

By now, it is evident that Marwan sexually harassed his fellow employee. This argument calls for in-depth analysis regarding the nature of the illegal act. It should be noted that sexual harassment occurs in two forms: quid pro quo and hostile work environment harassment (Dipboye & Colella, 2013). The first form simply means ‘this for that’, and it occurs when the perpetrator demands the victim to tolerate the inappropriate conduct as a condition of keeping or getting a job or a benefit. In Marwan’s case, the coworker was told that she would lose her job if she didn’t go on a date with him. Note that for this form of sexual harassment, Marwan’s retaliation threat has been ignored since it is treated as employer liability to this type of discrimination. On the other hand, hostile work environment holds value when the behavior is severe enough to establish an offensive working environment (Ruthergien, 2016). One can agree that Marwan’s conduct provides grounds for legal action as far as the hostile environment harassment claim is concerned. In conclusion, Marwan committed both types of sexual harassment by grabbing the coworker’s breast and coercing her into a date so that she can keep her job. 

What is the legal nature of Marwan’s employment? 

Before evaluating the legal nature of Marwan’s employment, one should consider the fact that such issues are governed by various laws depending on the jurisdiction. Therefore, it is worth noting that some of the sources of the laws relating to Marwan’s case include National Labor Relations Act (NLRA), Americans with Disabilities Act (ADA), Fair Labor Standards Act (FLSA). These laws are administered and enforced by the Department of Labor (DOL) (Feldacker &Hayes, 2014). As noted in the case study, both Marwan and his colleague have an undefined type of employment. However, the fact that there is no written contract between Marwan and his employer, one can assume that they had a verbal agreement. 

While oral employment contracts are legitimate and binding, they can be terminated at any time. This statement implies that Marwan was employed under the ‘at-will’ doctrine: it states that both parties agreed to work together without being coerced (Case, 2014). Such an agreement can be terminated under two main circumstances. It can be ended when the deal is done or when it violates public policy. In Marwan’s case, it is apparent that his inappropriate behavior violated federal employment laws; thus, his employer had to terminate the agreement immediately. However, Marwan’s appeal can emerge successful if he proves that his coworker’s allegations were false. If so, he will be protected by the NLRA, FLSA, and ADA. 

What actions and steps should Marwan’s employer take against him? 

Normally, it would be argued that the Studio Five management should have anticipated such an error and acted on it proactively. However, since the situation is at hand, one would make a few recommendations regarding the company’s disciplinary course of action. 

The management should conduct a rigorous investigation of the claims made by the female coworker. This will allow the company to reduce its chances of violating a labor law pertaining to unfair treatment (Stroumsa, 2014). This step also involves checking for any backing in form of witnesses or any other sort of evidence. 

The second step would involve engaging both parties in a conference with the company’s HR representative. At this point, the defendant might be made to understand that his colleague does not appreciate that kind of behavior. It is also at this point when the HR representative defines the punitive action to be taken. While this step remains essential, it seems inapplicable in Marwan’s case simply because his actions create a very hostile working environment. Therefore, the company will be required to place the perpetrator in probation for a predetermined period. This step would allow him to feel guilty, and to amend his ways. 

The last step will involve implementing the remedial action. In most cases, the outcome from this phase is highly determined by the nature of the harassment. In major cases such as rape, the ultimate remedial action involves contract termination as the matter is in the hand of the law enforcement (Harris & Krueger, 2015). With this concept in mind, one would agree that the most probable remedial action would be a demotion due to the impact it has on organizational leadership. 

The provided suggestions on the most appropriate actions to be taken against Marwan for his misconduct seem fair and practical. However, Studio Five’s initial approach was rather ill-founded especially since they did not investigate or even reprimand the perpetrator, and as far as the FLSA laws are concerned, it failed to give Marwan a fair chance. This argument can be countered by highlighting the claim that he was used to harassing all the female park guests. Also, one can highlight the fact that grabbing a woman’s breast without her consent is significant evidence of attempted rape. 

What is the validity of Marwan’s allegation of discrimination based on his disability? 

At this point, it is clear that none of the cases filed by both employees has a strong foundation since they both lack substantial evidence. With such a perspective in mind, one can note that Marwan’s allegation holds as much value as his colleague’s. He has a prosthetic leg, and he was terminated without prior notice. In the face of the law, Marwan’s case lacks something that the defendant (Studio Five) lacks. Such a postulated is founded on the fact that the case describes no point in which the harassment victim backs her allegation. In this case, the defendant is faced with a burden of proof since it is expected to show that Marwan sexually harassed his workmate, and that his prosthetic leg is unknown to anyone. Clearly, this will be hard for Studio Five unless it includes statements of other women who felt offended to prove that its decision was well founded. 

As for Studio Five, it may counter Marwan’s allegation by pointing out the fact that no one knew he was disabled. Such a claim can be supported by the fact that there lacks a written contract which would imply that the management knew his health condition prior to employing him. In this respect, it will create a motive for the immediate termination. Therefore, the fact that there lacks a formal documentation defining the terms of the contract gives Studio Five a legal leeway (Walsh, 2015). Also, Studio Five will have to prove that it takes all its employees (including Marwan’s) through the necessary sexual harassment prevention procedures. That way, it will imply that Marwan was fully aware of the dangers in which he was getting himself. 

What if the female employee sues Studio Five Theme Park? 

The whole situation leaves Studio Five in a catch-22 situation, as it has to protect itself from not only Marwan’s allegations but also the female employee’s. If it reaches this point, the main aim of the company would be to prove that it upholds both the State and federal labor laws (Case, 2014). Both of the cases show how the organization has neglected the fundamental procedures for mitigating workplace discrimination. As noted earlier, the US constitution prohibits the unfair treatment of employees on the basis of race, gender, health condition, and nationality among others. Therefore, the employer will have to prove that it limited its liability by implementing the following procedures. 

The development of a clear sexual harassment policy. Studio Five will have to defend its position by showing that it already has a policy that defines and explains the repercussions of sexual harassment in the workplace setting (Kubasek, Brennan, & Browne, 2016). This policy should be known by all if not most of the workers to maintain its validity. 

Coaching the employees. Studio Five will also have to show that its employees attend at least a workshop or two per year to enhance the employees’ understanding of sexual harassment and the appropriate course of action during such incidences. 

Monitoring of the workplace. The defendant will also have to prove that it conducts regular confidential surveys to learn about the everyday problems faced by its workers. 

Encouraging the victims to report such cases. Studio Five will also have to prove that it always stands for justice by taking complaints seriously and investigating before making ultimate decisions. 

It is only after proving the mentioned factors that the company will limit its liability regarding the female employee’s lawsuit. This will mean that despite having knowledge of the nature and impacts of perpetrating sexual discrimination, he went ahead and harassed his colleague. It will also mean that the company takes serious measures on matters relating to sexual harassment; hence, its liability for Marwan’s conduct will be limited. 

Why would the previous responses change if Marwan was a member of a union? 

First of all, it is necessary to note that the sole purpose of labor unions is to protect the interests of its members (the employees). Therefore, if Marwan was a member of a trade union that had a collective bargaining contract with Studio Five, the case would have been approached from a different angle. Unlike the described action taken by the company, the union’s approach to the problem would be somehow systematic and clear. Obviously, this would be done to facilitate fairness and mitigate errors. 

First, the union would have taken a sympathetic approach. In this case, all the union representatives dealing with the harassment or discrimination victim would begin the process by showing compassion to him or her. They would consider this approach since most victims are usually stressed out; hence, incapable of explaining the issue clearly (Kubasek, Brennan, & Browne, 2016). Also, they may find it hard to reveal the things done as well as the words said to him or her. Others prefer to keep it personal as they would seem partly responsible for the harassment. Perhaps, the female employee would think that maybe it is her physic that compromised her workmate. In other cases, members need to be assured that both the union and the company are against the discrimination. Therefore, this approach would be important for the union as it allows its representatives to create a rapport with both parties. Also note that the same case applies to Marwan’s lawsuit against the company. 

The second move would involve listening to both parties. Similarly, this approach is vital in the process: it allows the union to collect detailed evidence to guide its decision. They listen to the victim so that they can understand his or her claim (Kubasek, Brennan, & Browne, 2016). It also allows them to boost their confidence to go back to work after the process. On the other hand, they listen to the accused carefully so that they can establish the facts from both sides. Also, it allows them to create a rapport so that is it clearly understood that the process is fair. This approach also sets a stage for the union to illustrate their impartiality incase the case rules in favor of the perpetrator. 

After gaining sufficient information, the union representative would discuss the preceding course of action with the harassed worker. Note that at this point, the victim is taken through the legal procedures in such cases. The approach to be taken has to reflect the federal, state, union, and company rules and regulation pertaining to workplace discrimination (Deakin & Morris, 2012). Also, the union representative might take a suggestion from the victim regarding his or her preferred solution. For instance, some victims prefer to be shifted to different departments or locations to avoid the embarrassment that followed the incidence. Therefore, his or her suggestion will be taken for further discussions with the company management and the union officials. By the end of this step, the union is normally left with two choices: informal action or formal grievance procedure. 

Informal union action is normally taken without reference to the employer. In this case, the alleged harasser and the victims meet with the union representative, who then tells the harasser that his or her behavior is intolerable (Kubasek, Brennan, & Browne, 2016). This statement implies that Marwan would not be immediately laid off, and it would offer an opportunity for both he and the management to avoid the latter lawsuit. At this point, the victim writes a letter that includes his or her grievances and a promise to take formal action if the discrimination continues. A copy of the letter is then given to the harasser, who then agrees to change his behavior. While this option remains applicable, it does not apply to cases against the company; thus, Marwan’s lawsuit against the company would still take a formal grievance procedure. 

The Grievance procedure would be the last step taken by the union in collaboration with the alleged discrimination victims in Marwan’s case. It is termed as the final course of action since it is normally followed by a disciplinary procedure. For the sexual harassment claim, the procedure would involve reporting the matter to the company decision-making board who then decide the appropriate disciplinary action. It is worth noting that the union representatives also take a principle role in the decision-making process (Case, 2014). For the discrimination based on disability claim, the grievance procedure would involve taking the case to court. At this point, the trade union would represent its member (Marwan) in court (Case, 2014). Whatever the outcome, the union does not allow the complainant to be transferred, suspended, or forced to continue working with the harasser unwillingly. 

Types of company policies, procedures, and actions that businesses should employ to mitigate employee harassment 

The most effective policy that can be adopted by a company to curb workplace discrimination is the zero-tolerance policy. Such a policy implies that the defendant will be dealt with accordingly if found guilty. To enhance the framework, the organization will be expected to utilize organizational resources such as workshops, discussion forums, and memos to regularly communicate with the employees regarding fairness and appropriate behavior in the workplace. 

References 

Deakin, S. F., & Morris, G. S. (2012). Labour law . Hart publishing. 

Posner, R. A. (1989). An economic analysis of sex discrimination laws. The University of Chicago Law Review , 56 (4), 1311-1335. 

Ruthergien, G. (2016). Employment Discrimination Law, Visions of Equality in Theory and Doctrine . West Academic. 

Dipboye, R. L., & Colella, A. (Eds.). (2013). Discrimination at work: The psychological and organizational bases . Psychology Press. 

Stroumsa, D. (2014). The state of transgender health care: policy, law, and medical frameworks. American journal of public health , 104 (3), e31-e38. 

Kubasek, N. K., Brennan, B. A., & Browne, M. N. (2016). The legal environment of business: A critical thinking approach . Boston, MA: Pearson. 

Harris, S. D., & Krueger, A. B. (2015). A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: The" Independent Worker" . Hamilton Project, Brookings. 

Walsh, D. J. (2015). Employment law for human resource practice . Nelson Education. 

Case, M. A. (2014). Legal Protections for the Personal Best of Each Employee: Title VII's Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA. Stan. L. Rev. , 66 , 1333. 

Feldacker, B. S., & Hayes, M. J. (2014). Labor guide to labor law . Cornell University Press.