It is a common nature for societies to keep on changing with time. Whereas laws are designed to assist in the governance of the society, societies sometimes change to such an extent that definite laws seem amorphous. Title VII of the Civil Rights Act of 1964 in general and particularly the aspects that regard sexual harassment is a good case in point (AAUW, 2016). This law was created as part of affirmative action to ease the advent of the professional woman, but as the instant and other cases indicate, the situation has considerably changed. Whereas the issue of sexual harassment against female employees is still prevalent, cases of men claiming sexual harassment from female colleagues have also increased. Further, there is also the issue of same gender sexual harassment and transgender issues that could not have been envisaged in 1964 (Macdonald, 2016). However, through the principle of stare decisis , the available laws have been successfully extended to the emerging scenarios.
In the instant case between the plaintiff Jonathan Silverstein and the defendant Meredith Shaw, the cause of action is strong on law but weak on facts. The sexual harassment liability is however, strictly limited to the defendant without any vicarious liability to the employer due to the facts of the case. Jonathan and Meredith are colleagues who share a workstation. It is also clear from the foregoing that Meredith has access to Jonathan’s work computer. However, there is no evidence that Meredith is senior to Jonathan, hence the contention of the absence of vicarious liability (Akhbari, 2014).
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According to the plaintiff, the defendant performed a vicious prank on him by installing a naughty screen saver on the plaintiff’s computer. Further, the plaintiff contends that the defendant has continuously made unwelcome advances and innuendos against him. Finally, the plaintiff contended that the acts and omissions of the defendant had cost the plaintiff a promotion as the aforesaid naughty screensaver had been seen by the plaintiff’s supervisor. Upon further examination by the court however, the plaintiff indicated that he had never complained to the defendant about her conduct.
In her defence, the defendant does admit to the acts as alleged both the verbal aspects and the graphic content. The defendant further states that she has been a cordial friend to the plaintiff and a sexual banter, and explicit jokes have been mutually shared and enjoyed. Her defense, therefore, is that her conduct does not amount to sexual harassment as the plaintiff has been a willing participant of the conduct so complained about. This created two major defenses, the first being that the acts of the defendant were neither unwelcome nor uncalled for (Clarke, 2016). The second is the defence of volenti non-fit injuria on the basis that by participating in sexual banter, the plaintiff assumed the risk of an escalation of that banter (Clarke, 2016). The assumption makes the escalated banter and its kindred consequences in-actionable.
In his holding, the judge concluded that the defendant was not liable for sexual harassment as the plaintiff never complained of the defendants conduct. The plaintiff was, therefore, either a participant or condoned the conduct. This completely extinguished the claim for sexual harassment. With regard to liability for costing the plaintiff a promotion, the judge rightfully ruled for the defendant too. This was rightfully premised on the absence of the important ingredient of causation. Although evidence had been presented before the court that the plaintiff had been considered for a promotion, there was no evidence directly or indirectly connecting the acts of the defendant to the declination of the promotion. Indeed, the plaintiff does not give any evidence to show that he knows why his promotion was declined.
Both an employer and an employee can be liable for sexual harassment. The colleague is personally liable for individual conduct for acts that fall within the scope of sexual harassment as defined by Title VII of the Civil Rights Act of 1964. The scope of sexual harassment under the law includes acts such as welcome sexual advances with or without physical contact as well as direct or indirect requests for sexually related favors. Threats of sexual activity whether direct or via innuendo or offering sex as a bribe also amounts to sexual harassment. Further, sexually offensive jokes or comments and inappropriate touching also fall in a similar category. Finally display of graphic material or content is actionable sexual harassment. In a sexual harassment case, is any of the above is established through evidence and there is not plausible legal defence, the defendant will be liable for sexual harassment.
If the defendant is a principal in the place of employment such as the president or CEO, the liability will only be individual. There are however, several instances where an employer is vicariously liable for sexual harassment by a member of staff. The first instance is if the perpetrator was a supervisor and further that the number of supervisors was much less than the number of employees (Akhbari, 2014). This is based on the concept that the lower number of supervisors increases the employer’s capacity for better training and control (Akhbari, 2014). Further, the employer can be vicariously liable if the acts and omissions complained about had been reported to the employer yet no action had been taken against the perpetrator (Akhbari, 2014).
However, the issue of vicarious liability can be varied if the individual who is accused of sexual harassment is an independent contractor (Tanner, 2013). This is based on the understanding that vicarious liability stems out of control. An employer may not be able to control an independent contractor as there is no direct authority (Tanner, 2013). This concept negates vicarious liability if an employees is sexually harassed in a work place but by an independent contractor. All liability to the independent contractor will, therefore, be borne by the individual.
References
AAUW (2016). Know your rights at work: Workplace sexual harassment. Retrieved from <http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/workplace-sexual-harassment/>
Akhbari, K. (2014). Employer liability for sexual harassment . Retrieved from <http://www.legalmatch.com/law-library/article/employer-liability-for-sexual-harassment.html/>
Clarke, P. (2016). Rights of those accused of sexual harassment . Retrieved from <http://www.legalmatch.com/law-library/article/rights-of-those-accused-of-sexual-harassment.html/>
Macdonald, P. (2016). Sexual harassment at work is not only about men targeting women. Retrieved from <https://workinprogress.oowsection.org/2016/03/30/sexual-harassment-at-work-is-not-only-about-men-targeting-women-2/>
Tanner, G. (2013). Contractor status complicates workplace sexual harassment . Retrieved from <http://www.truth-out.org/news/item/18470-contractor-status-complicates-workplace-sexual-harassment/>
