DRAFT
This memo provides a comprehensive discussion on the various causes of action that Shewin may asset in good faith. The memo will canvas the elements that must be proved in all available causes of action. The paper will examine the facts that support each element and the facts that disprove any elements.
CHART ANALYSING THE VARIOUS CAUSES OF ACTION
ANALYSIS OF SHEWIN’S PRIMA FACIE CASE AGAINST BLABBER NEWSPAPER
There are three main causes of action available to Shewin, if she is to take legal action against Blabber. These are discrimination, sexual harassment and hostile work environment. This memo will, in this section, canvas the three causes of action stipulating the possibility of success of each case. This section will make a case for and against each cause of action. Discussions will begin with the case for discrimination followed by sexual harassment and then a case for hostile work environment.
DISCRIMINATION
The Civil Rights Act of 1964 provides that an employer may not discriminate an employee on the basis of sex, race, color, national origin and religion. Discrimination of an employee may take several forms. These include disparate impact, retaliation, and mixed motive discrimination among others. To discriminate means to treat an employee differently. This is with regards to the conditions of employment that formed the basis of contract of employment sighed between the employee and the employer. The real test comes when a determination has to be made on whether the employer treated a specific employee different. The test to be used is whether the same employer treats members of the same profession and same qualifications differently than the plaintiff alleges to have been treated. A typical example is where a black employee alleges discrimination. The test will be whether his employer has treated white employees within the same level of the profession and qualification differently. If different standards have been applied to the disadvantage of the black employee, then the employer has a case to answer.
In the present case, Shewin has a strong case against her employer for intentional discrimination. The first element that she must prove is that she is a member of a protected class of people. This should be in accordance with the law, and in this case the Civil Rights act of 1964. This law protects Shewin against any form of discrimination including discrimination by sex, color, race among other form of discrimination. Secondly, she must prove that she was qualified for the position. Shewin has two advanced degrees in English and Journalism from the University of Chicago. The plaintiff must also express interest in position by applying for it. Therefore, Shewin was sufficiently competent to fill the vacant editor positions. Furthermore, she had extensive knowledge, skills and expertise derived from her vast experience in the company. Therefore, her employer cannot be heard to claim that she was incompetent or unqualified. However, it is cardinal to recognize the fact that Bladder newspapers have a legal right to choose who to promote, hire and fire as long as they operate within the confines of the law. They do not have an obligation to promote any person unless the contrary is expressly stated in the contract of employment. Thirdly, Shewin has to prove that she has suffered an adverse employment action following the discrimination. From the facts of the case, it is evident the intentional discrimination by the company has negatively affected Shewin. She has missed numerous chances to advance her career despite being professionally competent. The company has only five directors who have an African-American descent. This implies that the company has been discriminating against members of this community. The fourth and last element involves proving that people who are not members of this class have been treated differently. Shewin has to prove that people with an African American descent have been denied similar opportunities whist other people have been given these opportunities.
SEXUAL HARASSMENT
This is the second most probable cause of action that is available to Shewin. Sexual violation is prohibited under Title VII as it constitutes sexual discrimination. In an employment setting, sexual harassment should involve unwelcome sexual advances by a senior supervisor or another employee of the company of the same authority. There are several ways to prove undesired sexual advances. Some of them include sexual jokes, intentional body contact and unwilling sexual relations among other indecent prepositions. In order for a plaintiff to establish a prima facie quid pro quo sexual harassment case, some critical elements of this offense must be met. From the facts of this case, therefore, Shewin must establish these elements and adduce evidence that will prove them and counter any other evidence to the contrary. First, she must establish that she is a member of a protected class of people and the law. This is a shoo-in element for Shewin. She is an African American woman of 45 years. In most cases, it is women who are sexually harassed by their male counter parts. Secondly, she must prove to the court of law the sexual advances were an unwelcome sexual harassment. In other words, Shewin must prove the element of being injured by the sexual advances. It is not enough to prove sexual advances. The plaintiff must have been harassment. Under these circumstances, the element can be proved beyond a reasonable doubt. Mr. King conducted her interview during a lunch date by asking personal questions about her relationship with her boyfriend. Moreover, she kept insisting they go out for a date to ‘discuss business’ repetitively despite Shewin consistently declining these offers. Thirdly, Shewin must prove that the unwelcome sexual harassment was significantly based on her sex. Shewin can prove that King had a reputation of making sexiest comments. Therefore, the way she treated Shewin was because of her sex because other male colleagues were treated differently. Fourthly, there should be proof that submitting to the sexual harassment was prerequisite to getting a job. Moreover, she must prove that refusing to submit caused a job detriment that would not have occurred had she submitted to the advances. The detriment suffered by the plaintiff must be tangible. In the circumstances of the case, Shewin was denied a chance to become an editor despite being qualified. Moreover, she was also denied a position of junior editor. This is sufficient proof that by refusing to submit to her superiors, she suffered several cases of job detriment. The fifth requirement is that Shewin must prove that her employer Bladder newspaper was responsible for King’s conduct. The reorganization of the company by the management was the main cause of her harassment. This is because it was only after they transferred him to head her department that the harassment began. Therefore, her employer, Bladder was responsible for King’s conduct.
HOSTILE WORK ENVIRONMENT
A hostile work environment is a tort that occurs when an employee gets subjected to unreasonably interference that is unwelcome. The tort can also be proved by showing that the employee was given impossible work to perform. It is immaterial whether the conduct of the plaintiff was subjected to, lead to a job detriment or benefit. In order to establish a prima facie case under this cause of action, Shewin would have to prove four critical elements. First, she must prove that she is a member of a protected group. This is an easy element as the law protects everybody from any form of discrimination based on the recognized categories. Secondly, she must prove that she was subjected to unwelcome harassment. The way Shewin was treated by her male colleagues whose cubicles were surrounding her area is sufficient proof of a hostile work environment. They discussed their weekend dates with excruciating detail without caring that Shewin heard their conversations. This conduct was unwelcome to Shewin. Moreover, she had previously filed a complaint against them. Thirdly, she must prove that the harassment was based on the fact that she was a member of the protected class of people. Under the circumstances of the case, this was a hostile work environment because it was premised on the fact that her colleagues were of the male gender and would discuss how they nailed other women during the weekend. The fourth element is that she must prove that the hostile work environment was pervasive enough to affect a fundamental condition, warranty, or privilege of employment. Shewin has entitled to have a friendly and conducive work ambience. However, her colleagues caused her distraction and stress which amounts to a hostile work environment. There is proof that she was entitled to a conducive work environment. Mr. Doright had sternly warned her colleagues against such behavior, and they only reverted to it after he was transferred to another division. The fifth and final requirement is that she must prove her employer knew or ought to have known that she was experiencing a hostile work environment and failed or negligently neglected to take corrective action. Mr. King refused to take action against her colleagues despite Shewin’s repeated complaints to him. In fact, he enjoyed the conversations. This proves that King intentionally refused or negligently neglected to take corrective action against these male colleagues. However, King did not participate in the conversations.
Shewin has a strong case against her employer not only for subjecting her to a hostile work environment and discriminating her, but also for sexually harassing her. Bladder Newspaper, on the other hand, has a week defence with regard to the claim of discrimination. According to this memo, the strongest cause of action against the Newspaper is suit for discrimination, then sexual harassment and lastly a cause for a hostile work environment.
References
Conte, A. (2010). Sexual Harassment in the Workplace: Law and Practice. New York: Aspen Publishers Online.
Cross, F. B., & Miller, R. L. (2011). The Legal Environment of Business: Text and Cases: Ethical, Regulatory, Global, and Corporate Issues. New York: Cengage Learning.
