The video, “You Be The Judge” is a case involving sexual harassment between two employees of the same company. In the case, Meredith Shaw is the Defendant while Jonathan Silverstein in the Plaintiff. The Plaintiff has just sued the Defendant for sexual harassment arguing that the nude photos that she sent to his computer are the main reason he has lost a job promotion in which he was the most suitable candidate. According to the Plaintiff, he has lost the promotion because his supervisor has made the final decision based on a “sexy screen saver” that appeared on his computer screen. In order to find out whether the Plaintiff’s claims are credible, it is important to consider five different issues namely; whether the sexual behavior was unwelcome, whether the Plaintiff’s reaction meets the “reasonable person” standard, whether a “hostile environment” has been created, whether there is any employer liability, and whether there is a corroborative evidence to support the Plaintiff’s claims.
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The sexual behavior was not unwelcome because the Plaintiff has failed to establish that the behavior was discouraged despite the fact that he came across similar photos several times at the workplace. The Plaintiff did not report any discomfort from such behaviors to the Defendant or to any other person in the company. Furthermore, the Plaintiff has not stated whether a negative or positive outcome was offered following acceptance of the sexual behavior. It is also evident that the Plaintiff’s reaction does not meet the “reasonable person” standard because no reasonable person would react the way the Plaintiff did. Moreover, the Plaintiff has not established that the Defendant created a “hostile environment” through his sexual behavior. There is no enough evidence to prove that the alleged sexual behavior disrupted the Plaintiff’s workplace functioning. Again, the employer is not liable in this case because the Plaintiff has not given enough evidence to prove that he had informed the management of the Defendant’s sexual behavior. The answers given to the five elements above explain why the Judge has made a ruling in favor of the defendant.
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There is one major applicable defense in the case between Jonathan Silverstein and Meredith Shaw and it is that the Defendant’s sexual behavior was unwelcome. The Judge has however made a ruling that the Plaintiff has tolerated such behaviors for a prolonged period of time and he is now raising questions about them merely because he feels that those actions have caused him promotion. In the video, the Plaintiff has told the Judge that Defendant has behaved the same way in the past but he has never tried to stop her. Additionally, the Plaintiff has admitted that he has never informed the Defendant that he normally feel uncomfortable as result of her alleged sexual behaviors. To make matters worse, neither the supervisor nor the Human Resource Manager has received complaints from the Plaintiff concerning the Defendant’s behaviors. Exhibit C gives a clear procedure that employees of the organization are expected to follow when reporting a complaint. The Plaintiff chose to ignore this policy only to take action when he feels that the alleged sexual behaviors have cost him a promotion in which he was the best candidate.
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The fact that the Plaintiff has taken part is the Defendant’s sexual behaviors in the past forms the basis of the judge’s ruling. According to the Judge, the Plaintiff has never warned the Defendant to stop her behaviors and he has never informed his supervisor about what is taking place at his area of work. Again, the Judge maintains that the Plaintiff’s reactions are unreasonable because he could not have taken any action suppose the supervisor had not seen the nude photo that appeared on his computer. In addition, the Judge has made a ruling based on the fact that Mr. Silverstein has not provided enough evidence to prove that he would have gotten the promotion suppose he did not have a sexy screen saver on his computer.
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In case of a sexual harassment, the employee and the employer may face liability depending on the person who has been found guilty of the offense (Solotoff and Kramer, 2014). If an employee has sexually harassed a co-worker, an employer may be held liable so long as the harassment occurred at the place of work and the employer fails to provide enough evidence that it took the necessary steps to prevent such behaviors. According to Roberts (2001), it is the responsibility of the employee to take necessary actions to ensure that employees refrain from any forms of sexual harassment while at the workplace. In the presented case, the employer cannot be held liable for the Defendant’s actions because the Plaintiff did not report the matter to the management, bearing in mind that he is not in a supervisory position. Furthermore, the Judge has already made a ruling that the Defendant’s sexual behavior was not unwelcome by the Plaintiff right from the beginning. The employer is therefore not liable for the Defendant’s conduct because the Judge has already ruled in favor of the defendant (Bland and Stalcup, 2001).
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According to Bland and Stalcup (2001), employees who are found guilty of sexual harassment can face either criminal charges or civil claims. The best example of a case that can be used to explain whether an employer or employee should face liability in case of a sexual harassment is that of Swentek versus US AIR Inc. This case shows how the liability of an employer is unquestionable when it comes to sexual harassment suit. According to the Australian Human Rights Commission, an employer is held liable for an employee’s sexual harassment behavior only if the employer received such complaints and failed to take the necessary action.
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If the sexual harasser were an independent contractor versus an employee, the factors determining the cause of action would not have been any different. In California, independent contractors and employees are protected under the California Fair Employment and Housing Act. This law protects workers and independent contractors from harassment and states that it is the responsibility of the employer to take the necessary actions to prevent any forms of harassment at the work place (Fremling and Posner, 2011). However, employers may be liable for sexually harassing their employees and independent contractors if they do not take the necessary steps to prevent sexual harassment. Similarly, employees and independent contractors may be held liable for sexual harassment if there is enough evidence to prove that unacceptable behavior occurred. Title VII of the Civil Rights Act of 1964 states that there nature of liability does not differ between an employee and an independent contractor should sexual harassment be confirmed. This means that a sexual harasser will always be liable for his or her actions whether he is an employee or an independent contractor (Willey and Butera, 2015).
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