I agree with Robert that this is the most interesting aspect of this
question.
I think this basic misconception about suing for actions one perceives as
unfair also relates to the common misconception of the "litigious society"
and the ease at which Americans can sue one another. It's based on a
misunderstanding of the role of law and the complexity of lawsuits. This
is one of the main misconceptions I address when teaching legal
environment.
Rosemary
Rosemary Hartigan, J.D., M.A.
Professor and Associate Chair
Director One-Year MBA
Business and Executive Programs
The Graduate School
University of Maryland University College
1616 McCormick Drive
Largo, MD 20774
Phone: 240-684-2484; 800-888-UMUC ext. 22484
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Robert Bird
Sent: Wednesday, October 31, 2012 12:56 PM
To: [log in to unmask]
Subject: Re: Workplace harassment?
What's most interesting, at least to me, is that the student at her
husband apparently considered legal action against his employer seriously
enough to consult with her professor. This is evidence of what Pauline
Kim explains as a "fairness heuristic," which means that 'what I believe
is wrong must be illegal'. The husband perceived his treatment is unfair,
thought then it might be or likely was illegal, and considered taking such
action. More broadly, I suspect that many employees believe they have
more rights than they actually possess.
Again, I'm totally speculating here, but they also didn't dismiss the idea
of legal action out of hand because of the loss of goodwill it would
create in workplace. They seemed to under-emphasize the political and
long-term consequences of threatening or filing such an action. I suspect
that even the threat of formal action would label the husband a 'sue happy
pariah' by managers at his workplace. At its worst, a lawsuit might
follow him to subsequent employment.
At least to me, this is more interesting from a human workplace psychology
perspective than it is a legal question of Title VII.
Robert
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Kunkel, Richard G.
Sent: Wednesday, October 31, 2012 12:38 PM
To: [log in to unmask]
Subject: Re: Workplace harassment?
Hi ALSBers,
Not every kind of boorish behavior in the workplace gets a legal remedy -
only particular ones identified by statutes (Title VII) and common law
(defamation, emotional distress).
The remedy for most boorish behavior comes from the marketplace. Good
employees (even those not harassed, but who object to harassment of
colleagues) vote with their feet and leave for other jobs with reasonable
bosses and co-workers. Firms develop reputations as sweatshops or
unfriendly to workers, and don't get the best quality applicants. The
market has ways of settling the score, eventually.
The best remedy for the employee is to find a better job in the labor
market -- and upon leaving, to be sure that the HR manager and owner know
the reasons for leaving, so that the boorish boss will have to take
responsibility with the employer.
This option may be difficult in the current economy, so for the time
being, the employee may conclude that a decent job with a jerk boss is
better than a lesser job with a good boss, or no job. Unfortunately, in
that case, neither the market or the law provides a remedy -- and sadly,
this is all too often the case. Here, too, the market makes the firm
answer for the boorish manager - it is unlikely that employees in such
cases will strive to give their best effort, will have more absenteeism,
medical issues etc. Productivity will fall. The firm with boorish
managers will pay, eventually, in court, or in the market.
Rick Kunkel
-----Original Message-----
From: DANIEL HERRON <[log in to unmask]>
Reply-To: "[log in to unmask]" <[log in to unmask]>
Date: Wed, 31 Oct 2012 12:08:08 -0400
To: "[log in to unmask]" <[log in to unmask]>
Subject: Re: Workplace harassment?
>of course....it is a wonderful talking point
>
>On Oct 31, 2012, at 12:01 PM, "Kurt Schulzke"
><[log in to unmask]> wrote:
>
>> To be clear, I did not say, "Yeah, go file a lawsuit." Only this:
>>This situation may well be actionable under Title VII.
>>
>> Admittedly, Title VII would be a tough sell on the basis of a single
>>F-bomb. But further inquiry might yield additional details helpful to
>>a Title VII action or something similar. Race, national origin, or
>>age? Is this employee a whistleblower? Why did this employer blow up
>>in this situation?
>>
>> Whether a lawsuit is "worth it" is separate from actionability.
>>
>> Kurt S. Schulzke, JD, CPA, CFE
>> Associate Professor of Accounting & Business Law Director - Law,
>> Ethics & Regulation Corporate Governance Center Kennesaw State
>> University
>> + 1770-423-6379 (O)
>> + 1404-861-5729 (C)
>> http://coles.kennesaw.edu/centers/corporate-governance/
>> My research: http://ssrn.com/author=804023
>>
>>
>>
>>
>> ----- Original Message -----
>> From: "Lee Reed" <[log in to unmask]>
>> To: [log in to unmask]
>> Sent: Wednesday, October 31, 2012 11:30:51 AM
>> Subject: Re: Workplace harassment?
>>
>> How can these facts fit under Title Vll? Where is "race, sex, color,
>>religion, or national origin"? Maybe if the manager doesn't cuss at
>>female employees, but otherwise Title Vll doesn't apply to the husband.
>>How about intentional infliction of mental distress, but only then,of
>>course, if the facts shock the court as being way out of the ordinary
>>and the husband can come up with a heart attack or other significant
>>physical manifestations of the "ordeal."
>>
>>
>> On Wed, Oct 31, 2012 at 11:14 AM, Herron, Daniel J. Dr. <
>>[log in to unmask] > wrote:
>>
>>
>> But.....given the fact pattern, is it worth it?
>>
>> Dan
>>
>> On Oct 31, 2012, at 11:09 AM, "Kurt Schulzke" <
>>[log in to unmask] > wrote:
>>
>>> In my view (not legal advice), the conduct described could well be
>>>actionable as harassment under Title VII. See
>>>http://www.eeoc.gov/laws/practices/harassment.cfm .
>>>
>>> Kurt S. Schulzke, JD, CPA, CFE
>>> Associate Professor of Accounting & Business Law Director - Law,
>>> Ethics & Regulation Corporate Governance Center Kennesaw State
>>> University
>>> + 1770-423-6379 (O)
>>> + 1404-861-5729 (C)
>>> http://coles.kennesaw.edu/centers/corporate-governance/
>>> My research: http://ssrn.com/author=804023
>>>
>>>
>>>
>>>
>>> ----- Original Message -----
>>> From: "Daniel Warner" < [log in to unmask] >
>>> To: [log in to unmask]
>>> Sent: Wednesday, October 31, 2012 10:39:48 AM
>>> Subject: Workplace harassment?
>>>
>>>
>>>
>>>
>>> Hi Colleagues,
>>>
>>>
>>>
>>> I received the note below from a student. This situation doesn靖
>>>seem to be sexual harassment; it seems more that the boss here
>>>behaved like an obnoxious knucklehead. But boss being offensively
>>>impolite, even using the F word, doesn靖 seem to me to be harassment.
>>>The bit about the HR person being close friends with the boss is a
>>>nice touch, but certainly typical in a small business.
>>>
>>>
>>>
>>> I don靖 give any legal advice to students, certainly, but this
>>>deserves the courtesy of a reply. What recommendations would you make
>>>here?
>>>
>>>
>>>
>>> Thank you. Here零 the note:
>>>
>>>
>>>
>>> Today, my husband had an experience where his boss yelled and cussed
>>>him out with the F word in front of four other employees, without due
>>>cause.
>>>
>>> This obviously upset him, but he simply turned around and continued
>>>his work. He felt unsafe and, even though his boss apologized about
>>>15 minutes later, he still feels anxiety about going back to work
>>>tomorrow. It's a small business and the HR
>>>
>>> manager happens to be very close friends with his boss. The
>>>situation is touchy and we were just wondering if this falls under
>>>harassment laws and what the best way to go about addressing the
>>>issue is. His options would be to talk to the HR
>>>
>>> manager or the owner of the company. Do you have any suggestions or
>>>advice?
>>>
>>>
>>>
>>> Thanks again,
>>>
>>>
>>>
>>> Dan
>>>
>>>
>>>
>>>
>>>
>>> Daniel M. Warner
>>>
>>> Professor, Department of Accounting
>>>
>>> (Business Legal Studies)
>>>
>>> MS 9071
>>>
>>> Western Washington University
>>>
>>> 516 High St.
>>>
>>> Bellingham, WA 98225
>>>
>>> (360) 650-3390
|
