Ouch v. Jakubek An analysis on reporting of Sexual Harassment in the work place Strayer University

This analysis is a look at the sexual harassment in the case of Ouch v. Jakubek and why the situation was not in compliance with the federal employment laws. The discussion will try to create a plan that will correct the issues in the future and bring the Jakubek back into compliance of the law under Title VII of the Civil Right Act.

In the work environment there are many laws that help protect the employee rights in the work place. One of these laws is The Civil Rights Act of 1866, which prohibits employers from discriminating against individuals because of their race. Over the years the Civil Right Act has change to encompass not only race, but also prohibits employers from discriminating in terms of conditions of employment on the basis of color, national origin, religion and sex. [ (Kubasek, 2009, p. 627) ] In the court case of Ouch v. Jakubek we will look at the part of the Civil Right Act under Title VII on discrimination because of sex or in this case sexual harassment. Sexual harassment is “the unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, which explicitly or implicitly makes submission a term or conditions of employment or creates an intimidating, hostile, or offensive environment.” [ (Kubasek, 2009, p. 599) ] Under Title VII of the Civil Right Act, in order to show sexual harassment a plaintiff must show that “the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” and there is a “specific basis for imputing the conduct creating the hostile work environment to the employer.” [ (Ouch v. Jakubek, 2009) ] In the case of Ouch v. Jakubek, Ouch requested a transfer to a different schedule so she did not have to work with the employee harassing her. Although Ouch did not make a formal complaint against the employee that was harassing her, the supervisor was aware of the issue from other sources. The supervisor had past knowledge that the employee had harassed other women in the company, but did nothing to correct the actions. The harassing employee was not reprimanded for his action, but was just told to grow up and knock it off. The supervisor at this point had perpetuated the abusive work environment

that Ouch was dealing with. When the supervisor finally asked Ouch about the harassment she stated she did not want to talk about it because it upset her. The supervisor action in this case was not within the guide lines of the Law. The supervisor dismissed Ouch by saying “good because I don’t want to know what happened” [ (Ouch v. Jakubek, 2009) ]; this was his way of sweeping the whole issue under the rug. The supervisor did not act in a prompt and effective manner to correcting a problem that one of his employees was harassing another. Ouch was finally transferred to a different scheduled time that got her away from the harassment, but the action of the supervisor did not protect her or other women’s rights granted by the law. When it comes to filling a claim of sexual harassment the enforcement of Title VII is complicated. In Ouch v. Jakubek, Ouch did not file any formal complaint against the offender. Nor did Ouch give a reason why she wished to move to another shift. The fact that the supervisor knew of the harassment and that Ouch was not the first to experience it, should have been reason enough for the supervisor to take appropriate action and grant Ouch’s wish to move to another shift ,way from the harassment. Having clear knowledge either written or oral should help management make the right decision when sexual harassment is creating a hostile environment or abusive work environment. Unlike the case of Ouch v. Jakubek, the case of Blanca Valentín-almeyda, Plaintiff, Appellee, v. Municipality of Aguadilla; Justo Cruz, Defendants, Appellants, the plaintiff Blanca Valentin-almeyda did make many formal complaints to the powers that be. But, the Municipality felt that Valentín unduly failed to take advantage of any protective or corrective opportunities provided

by the employer or to steer clear of injury otherwise. Assuming such opportunities were even open to Valentín, in fact and not just on paper, she pursued them. She complained time after time, to quite a few different individuals who were proper people to whom to complain such as the Mayor, the Commissioner, fellow police officers, Human Recourses and Norma Gonzalez, the secretaries' supervisor and designated complaint-receiver. She was disregarded or worse at every turn. The Municipality's position that none of her complaints were in writing is a non sequitur in light of its failure to show that complaints had to be in writing. Finally on February 26, 2001, Valentín filed an administrative complaint before the Anti-Discrimination Unit of the Puerto Rico Department of Labor; the complaint was referred to the Equal Employment Opportunity Commission (EEOC) under a work-sharing agreement. On the complaint, Valentín lists the Municipality, Cruz, and Vélez as having discriminated against her. The complaint alleges sexual harassment by Cruz and retaliation by Cruz "and other supervisors." It was only after Valentín filed the administrative complaint that there was any exploration of her claims of harassment; the Mayor then ordered an in-house investigation. (Negrón, 2006) Valentin did file many formal complaints and still had issues getting her complaint heard. In Valentin case the channels that were set up to help her were the same channels stopping the sexual harassment claims. In both cases the sexual harassment was clearly evident and both parties suffered in working conditions that were both hostile and abusive. The cases are good examples in showing why the guidelines for Title VII were enacted to protect both men and women from sexual harassment. In both cases the manager/supervisor could have avoided sexual harassments if they had followed

the procedure or rules of the law. First, Management should take a clear stance that sexual harassment will not be tolerated I any form. Second, management should have an explicit written policy on sexual harassment and distributed to all employees. Third, employees should know what is or is not classified as sexual harassment. Fourth, gender neutral training programs should be provided to all employees. Fifth, establish a procedure for investigating any claims or charges of sexual harassment and what happens to violators. Sixth, complaints should be filed with a neutral party, not with the employee’s supervisor. And finally, investigate and resolve every complaint, punishing every violation appropriately. When no violation is found after a complaint has be filed, then the person bring the complaint is owed an explanation to way no violation was render. (Kubasek, 2009, p. 608) (Swishre, 1994)

References:

Kubasek, N. B. (2009). The Legal Environment of Bussiness; A Critical Thinking Approach, Fitfth Edition. Upper Saddle River, NJ: Pearson Prentice Hall.
Negrón, L. M. (2006, 5 9). Justia > Cases > US Court of Appeals > F.3d > 447 > 85 - Blanca Valentín-almeyda, Plaintiff, Appellee, v. Municipality of Aguadilla; Justo Cruz, Defendants, Appellants. Retrieved 5 2, 2010, from Justia: Cases US Court of Appeals: http://cases.justia.com/us-court-of-appeals/F3/447/85/505321/
Ouch v. Jakubek (US Court of Appeals for the Second Circuit 12 17, 2009).
Pennsylvania State Police v. Suders: U.S. Supreme Court Decisioin Impacts Emplyers (United States Supreme Court June 2004).
Swishre, K. (1994). Corporations Are Seeing the Light on Harassment. Washington Post National Weekly Edition , 21.