Sexual Harrasment

Civil rights law provides for employee protections against discrimination in many situations. The legal criteria must be strictly adhered to in order to qualify for the protections afforded under the law. What happens to civil rights if a part of the workforce is unprotected by civil rights laws? Will the public policy exception to the employment-at-will doctrine expand to fill gaps in public policy to the point where exclusions will be rendered meaningless? Civil Rights laws do not take into consideration all aspect of the workforce.

As a result, there is a certain class of people who were not considered when this law was first enacted. In most cases it will be up to the courts to decide if an employee rights were violated. I do not believe that the public policy exception to the employment-at-will doctrine will expand to fill all the gaps in public policy. There are states where public policy is treated as a cumulative remedy also taking into consideration the remedy provided by the statute.

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Other states limit the reach of public policy exception to statues that contains no remedy for an employee injured by the employer’s violation. Until all states have the same clear distinction on how public policy exceptions should be handled I think the possibility is slim at this point. Some states treat public policy exception claims as providing a cumulative remedy in addition to the remedy provided by the statute. Those states allow the employee to obtain the remedy provided by the statute, plus the lost wages, benefits or other remedies available under a public policy exception claim.

Other states limit the reach of public policy exception claims to statutes that contain no remedy for an employee injured by the employer’s violation of the statute. Under this test, the availability of some remedy, even though incomplete will bar a more expansive claim for a public policy exception. For example, even though the Family and Medical Leave Act has no compensatory or punitive damages available for a violation, the Ohio Supreme court barred a public policy claim because the of the availability of at least some remedy.

In a related vein, if a state’s supreme court concludes that the legislature intended the remedy provisions in the statute to be an essential part of it, and those remedies adequately protect society’s interest, it will not recognize a public policy exception based on such statute. Because Congress has not explicitly granted protection from gender discrimination under Title VII of the 1964 Civil Rights Act1 to welfare recipients in workfare programs, these workfare participants are often forced to work in positions where they are subjected to repeated sexual harassment in order to preserve their welfare benefits.

In order to protect these vulnerable workers, Congress should enact legislation to provide explicit Title VII protection for workfare participants.

  • 1.As a result of the welfare reforms of 1996, federal law now requires many welfare recipients to work in public or private sector jobs in order to receive their welfare benefits.
  • 2. If these workfare participants do not perform their jobs satisfactorily, their job placement will be terminated, and they will no longer receive their welfare benefits.
  • 3.Unfortunately, these workfare participants often experience gender and race discrimination in their job placements.
  • 4. Because they will lose their welfare benefits if they do not continue their job placements, these workers are often forced to remain in positions where they are consistently harassed.
  • 5. The Personal Responsibility and Work Reconciliation Act (PRWORA),6 which implements the workfare requirements, does not explicitly state that workfare participants are entitled to protection from employment discrimination under Title VII.
  • 6.Congress enacted Title VII to protect employees from discrimination based upon gender, race or religion in the workplace.
  • 7. In Meritor Savings Bank v. Vinson, the United States Supreme Court held that sexual harassment was a form of gender discrimination, and therefore, it was prohibited under Title VII.
  • 8. Since Title VII only protects employees from discrimination, however, in order to bring a successful lawsuit under Title VII, a worker must convince the court that she is an employee as defined by Title VII. This can be complicated because Title VII does not provide a clear definition of the term “employee. “
  • 9. In order to determine if a worker is an employee under Title VII, a court will likely examine the specific facts of the employment situation. First, the court will determine if an employment relationship exists. If so, the court will apply one of three tests to determine if the worker is an employee or an independent contractor. Following the United States Supreme Court’s decision in Nationwide Mutual Insurance Co. v.Darden,
  • 10. it appears that the common-law agency test is the correct one to apply in Title VII situations.
  • 11. Because Congress has not explicitly stated that Title VII protects workfare participants, it is up to a court’s interpretation of Title VII to determine if workfare participants are employees and therefore covered under the Act. The second Circuit Court of Appeals found that workfare participants are employees in the specific situation when the workfare participants’ welfare benefits are paid by the agencies where they work.
  • 12. However, other courts may not follow the second Circuit or may find that workfare participants are not employees in other situations, such as when the agency paying the welfare benefits is not the same agency where employees are working. Despite the fact that the legislative history of the PRWORA and the agency regulations that implement the PRWORA suggest that Title VII should apply to workfare participants, there is enough ambiguity surrounding Title VII’s application to workfare participants that courts may determine that workfare participants would not be protected. In light of this ambiguity, Congress must enact or amend legislation that clearly provides that workfare participants are employees for purposes of Title VII.
  • 13. Without explicit Title VII protection, workfare participants are required to work side-by-side with non-workfare workers without a guarantee of the same protections from sexual harassment and other forms of gender… See the full content of this document