Anti-discrimination in Employment & Occupational Health & Safety Laws Essay

Employment is governed by numerous laws and statutes which are meant to protect the welfare of both the employee and employer. Common law is founded on the principles of objectivity, support, replicability and responsiveness as explained by Eisenberg (1988, p.8). Furthermore, these principles have emerged over a long period of time and are rooted in the courts’ social function and considerations of fairness and justice. A majority of these laws are often constructed with the welfare of the employee in mind and they include occupational health and safety laws, worker compensation and anti-discrimination laws.

In a bid to evaluate the principles under which these laws operate, this paper will evaluate an illustrative case study. In this case study, there are observations of occupational injury and sexual harassment of the worker. The analysis will respond to the worker’s warrant for compensation for her injury, the breach of duty of care by her employer and on the way forward in tackling workplace sex discrimination and harassment.

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            Every state possess its own workers’ compensation statutes in which workers are expected to collect benefits, receive medical attention or rehabilitative services when they have work related injuries or illnesses. Prior to the emergence of this law, employees’ only alternative was to sue their employers for negligence. Anna Pallacci suffered a hand injury while at work and has course to seek worker compensation. Worker compensation programs are based on the guidelines that benefits are given to injured workers without regard to fault and that limited liability is also provided for employers. What emerges as most important in deciding whether to seek claims is whether a worker can show that their injuries are related to their work. Anna Pallacci qualifies for worker compensation benefits because indeed her injury occurred at her workplace. Burton, Schmidle and Thomas (2001, p.6) indicates that injured workers are expected to pass a legal test prior to making claims for occupational injury compensation. One part of this test involves proof for personal injury which Anna can provide as there is a laceration on her hand. Anna also has to prove that her injury resulted from an accident and this she can do as there were many witnesses to her injury. Another part of the legal test involves showcasing that the cause of the injury was also related to her work and that the injury occurred during her time of employment. Anna engaged in the preparation for use in the assembly line and regardless of the fact that she was not assigned to work there her initiative in ensuring that there is no time wastage resulted to her injury. In fact, if she had not been injured, her initiative would have worked to the benefit of her employer. Financing of workers’ benefits are delegated to the employer who then opts for any of the recommended state insurance programs. According to Durbin, Meyer and Viscusi (1995) worker compensation claims can benefit both the employer and employee in its capacity to reduce workplace injuries.

            Employees are entitled to safe working environments and as emphasized by Ashford and Katz (1993) occupational health and safety laws are an integral part of labor relations. The United States Occupational Safety and Health Administration is an agency which regulates safety mechanisms in American workplaces. The derived Occupational Safety and health act aims to prevent work related injuries, ailments and fatalities by ensuring strict safety standards in all workplaces. Kloss (2010, p.142) indicates that occupational health and safety laws are normally based on the duty for care principle which if forfeited or breached, employees have reason to seek compensation and other claims. This principle is implemented by the employer who is expected to plan for the prevention of work related health and safety hazards. Employers are charged with the duty of ensuring the health, safety and overall welfare of employees. Also, employers are obligated to ensure that other individuals do not suffer as a result of an employee’s conduct during their work. On the other hand, an employee is also obligated to take reasonable care of themselves and others during work and must also cooperate with their employers in enforcing safety standards. Anna Pallacci suffered her injury out of her own decision to work and her injury was quite accidental. Anna cannot make complaints based on the breach of duty of care by her employer because her injuries did not result from the employer’s neglect of workers’ safety. Ford, Hill and Notestine et al (2000, p.20) indicate that as long as employers have complied with the following regulations, developed occupational health and safety policies, set up mechanisms for consulting with employees on health and safety, established risk identification and assessment strategies in the workplace and implemented and maintained control and prevention strategies, then occupational accidental injuries cannot be credited to the employers breach of duty for care (Lowe & Shannon, 2010).

            Anti-discrimination laws are used to safeguard employees from discriminatory practices with respect to their gender, race and age among others. In addition, these laws serve the sole purpose of ensuring that equal opportunities are accorded to all individuals regardless of their beliefs and orientation. Anna’s male coworkers are behaving differently towards her after her promotion which indicates gender discrimination. However, Anna Pallacci can only act on the sexually suggestive gestures and remarks made by the coworkers as it indicates a case of sexual harassment. Indeed, her fears and anxieties which are preventing her from reporting the incidences are likely to culminate into a hostile working environment. Ford et al (2000, p.66) explains that sexual harassment constitutes unwelcome sexual advances and requests and other verbal or physical conducts of a sexual nature. Anna suffered experienced both unwelcome verbal and physical sexual behaviors. Furthermore, sexual harassment in this instance is authentic especially due to the fact that it is as a consequence of her promotion. Mann and Roberts (1996) assert that workplace sexual harassment can result in loss of employee morale and reduced productivity. These elements often arise out of hostile work environments for employees who suffer sexual harassment. In Anna’s case the employer is liable for the acts committed by other coworkers. This is because the employer should have known of such incidences and even should have anticipated this after Anna’s promotion. The employer in this case can only avoid liability if after their knowledge they instigate effective action against the coworkers.

            When making sexual harassment claims against the coworkers, Anna’s main role will be to prove that the behaviors carried out were unwelcome. Kramer and Schiff et al (2000, p.5) reflects that unwelcomeness can be proven by authentically indicating that these behaviors were neither solicited nor invited. It is in this sense that aspects of verbal and nonverbal sexual gestures are analyzed in sexual harassment litigation cases. Speech is the most commonly used medium for establishing sexual requests and relations by individuals charged with sexual harassment. Speech is said to be sexually oriented per the guidelines provided by sexual harassment laws. Volokh (1997) asserts that even though there is the maintenance of freedom of speech in a workplaces, employees are expected to be cautious and uphold professional ethical standards in their speech interactions as sexual connotations vary between employees. Even though the employer at Kingswood Motor Company can be liable for Anna Pallacci’s sexual harassment, the coworkers involved in the behaviors are personally liable and Anna can file sexual harassment lawsuits against them and seek compensation.

            From the above case study analysis, it is evident that workers welfare is intricately safeguarded by established laws and statutes. The examined laws included occupational health and safety Act, worker compensation and anti-discrimination laws. While they are all governed by specific principles, they are also under the umbrella of common law which applies long time guidelines in enhancing the function of fairness and justice within the legal system. Worker compensation claims are only valid when employees have suffered injuries at the workplace and as a result of carrying out their duties. Proof of authenticity of such claims can amount to the accrual of benefits for the injured employees. In terms of occupational health and safety, the statute is based on the employer duty for care principle which ensures that employers take precautions and implement various strategies for promoting occupational health and safety. The failure to meet these standards amounts to a breach of the duty for care by employers. This can in turn result to liability claims for any health or safety adverse consequences suffered by employees. Lastly, the analysis has also evaluated anti-discrimination laws with specific reference to sexual harassment. In this regard claims for sexual harassment are said to be valid when the employee can prove that there were unwelcome sexually oriented behaviors and that they interfered with their work. Both the employer and responsible employees can be liable if such claims are proven.

References

Ashford, N.A., & Katz, J.I. (1993). Unsafe Working Conditions: Employee Rights under the

Labor Management Relations Act and the Occupational Safety & Health Act. Notre Dame Law, (52), pp.23-36.

Burton, J.F., Schmidle, T.P, & Thomason, T. (2001). Workers’ Compensation: Benefits, Costs,

and Safety under Alternative Insurance Arrangements. Michigan: W.E. Upjohn Institute for Employment Research.

Durbin, D.L., Meyer, B.D., & Viscusi, W.K. (1995). Workers’ Compensation and Injury

Duration: Evidence from a Natural Experiment. American Economic Review, (85) pp.322-342.

Eisenberg, M.A. (1988). The Nature of Common Law. New York: Harvard University Press.

Ford, K.E., Hill, R.N., & Richard, N. (2000). Fundamentals of Employment Law. Chicago:

            American Bar Association.

Kloss, D.M. (2010). Occupational Health Law. Oxford: John Wiley & Sons.

Kramer, L.C., & Schiff, M.B. (2000). Litigating the Sexual Harassment Case. Chicago:

            American Bar Association.

Lowe, G.S., & Shannon, H.S. (2002). How Many Injured Workers Do Not File Claims for

Workers’ Compensation Benefits? American Journal of Industrial Medicine, (42), pp.467-473.

Mann, R.A., & Roberts, B.S. (1996). Sexual Harassment in the Workplace: A Primer.

Akron Law Review (26), pp.269-292.

Volokh, E. (1997). What Speech Does “Hostile Work Environment” Harassment Law Restrict?

            GEO Law Journal, (85), 627-825.

 

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