Peace to you, Shelby
And to you, as well, dear TD!
With respect, Shelby, I said nothing about an employer-employee relationship. I said that people must "work together."
With respect, dear one, YOU said: " No employer; no sexual harassment." Again, your statement is misleading.
That does not require that one individual be an employer and the other be an employee nor does it require that they be coworkers. It does not even require that they both work for the same employer.
I think the problem is your understanding… and use… of the words “employer,” “employee,” and “employment.” They are NOT the same as “customer/client,” “contractor,” or “contract” or “engagement.” It could be because you are misunderstanding the word “hire.” I can either “hire” someone as an EMPLOYEE (which has a definitive description and is subject to pertinent laws and taxes)… OR as a CONTRACTOR (which has an entirely different definitive description and is subject to different laws and taxes). In the first, I am actually taking such person on as my employee and thus am liable for his actions. In the second instance, however, I am merely contracting with or engaging him. I am not “employing” him.
An example would be the guy I hire to replumb my house: he is NOT my employee. He is a CONTRACTOR. Thus, there is no “employer,” at least not with regard to MY relationship with him. If there were, I would have to pay FICA, Unemployment, Medicare and payroll taxes for him. Now, he may HAVE employees… and so would be liable for any misconduct by that employee. Or, he could use independent contractors and be liable for their conduct. However, he COULD be a “one-man” show… just himself… no underlings and no contractors and, therefore, NO “employer” status. Because I do not “employ” him – I CONTRACT with him.
Thus, in order for there to be an “employer,” dear TD… there must be an EMPLOYEE. However, a contractor may be just that, AN INDEPENDENT CONTRACTOR… and not an employer OR an employee. Doctor Mitchell… who is SELF-EMPLOYED… may sexually harass his Patient, Sinclair. There is NO employer… and so, no employee… in that instance. Independent Real Estate Broker/Agent Jones… may sexually harass potential homebuyer Smith. Again, NO employer… OR employee.
You've pointed out that the harassment need not occur at traditional workplace and I appreciate that additional information. But I don't think that changes the fact that with sexual harrasment, the locus of the connection between harasser and victim is employment.
Perhaps you should look up the distinction as to “employer”… and “independent contractor.” If you did, you would understand that sexual harassment can occur in a CONTRACTOR/CLIENT situation, dear TD… which is NOT “employment.”
The employer can be either a responsible or non-responsible third party or parties; the employer can be the harasser; the employer can even be the victim,
That is absolutely true WHERE there IS an employer… or where an employer utilizes an independent contractor. In the latter instance, even though the contractor is not literally employed by the employer, the employer can be held liable for such contractor’s misconduct AGAINST THE EMPLOYER’S EMPLOYEES.
So, if Jim Plumber’s… plumber… engages in sexual harassment, I can sue Jim Plumber… FOR THE CONDUCT OF HIS EMPLOYEE… yes. But let’s say it’s Jim Plumber himself. And he has no employees and uses no contractors. And he’s halfway done with re-plumbing my house when he tells me he will finish it IF I… what… do him a sexual “favor.” And if not, the price has just jumped $1,500. I do not employ Jim Plumber – I do not pay unemployment, FICA, Medicare, or other payroll taxes. He is not my “employee” and I am not his “employer.” And my home is NOT the “workplace.” Because if it WERE, I would need to have Labor Law, EEOC, and other posters posted where Jim could see them, as well as provide a break area, rest breaks, pay him overtime, provide workers’ comp coverage, etc.
Thus, in order for there to be an employer, there must be an employee. Both are VERY distinctive positions, however, and independent plumbing contractor, Jim, who works on his own… sets his own hours… does not have employees… and who I am not liable to labor laws for and does not have employees… can very well sexually harass me, his CUSTOMER. And I can SUE him… for emotional distress, etc.,… if I can PROVE he sexually harassed me. And no one will be liable BUT Plumber Jim.
but the element of employment exists in every business, service, professional relationship and workplace.
That is not accurate, dear TD. While both quid pro quo and hostile work environment INCLUDE the workplace and in BOTH cases, the employer can be held liable, there is ALSO sexual harassment that does NOT include the workplace.
If you disagree with that and you can point me to a case where either Quid pro quo or Hostile work environment harassment was ruled to have occurred without that type of connection, I would be very interested in reading it.
Well, I cannot point you to a case where “either quid pro quo or hostile work environment” was ruled to occur without such connection… because both of these are WORKPLACE types of sexual harassment. By default, it would HAVE to include on or the other of these. But, I can point you to a sexual harassment case that was NEITHER quid pro quo OR hostile work environment… because IT DID NOT INVOLVE THE WORKPLACE AT ALL.
The case is Davis v. County of Board of Education (1999). There, the court held that under Title IX of the Education Amendments of 1972 (and NOT Title VII the 1964 Civil Rights Act) … SCHOOLS were in fact liable for student-on-student harassment. There was no quid pro quo there, as there was no employment relationship between ANY of the parties: the perpetrator, the victim, OR the institution. Nor was there a hostile work environment because the school was neither student’s “workplace” (i.e., neither was employed by the school) nor was there any “working” relationship.
In addition to the above, there is the CONTRACTOR/ CUSTOMER environment that I posted previously, and which I am referring to now. While the CONTRACTOR may be held liable, there is NO “employer” involved.
The FEDERAL law prohibiting sexual harassment in the workplace is Title VII of the 1964 Civil Rights Act, as amended. Title VII applies to private and most public employers, labor organizations, employment agencies, and joint employer-union apprenticeship programs with 15 or more employees.
The CALIFORNIA state law that prohibits sexual harassment in employment is the Fair Employment and Housing Act (FEHA). The FEHA also applies to private public employers, employment agencies, labor organizations, state licensing boards, and state and local governments but that have 1 or more employees. Unlike Title VII, FEHA also provides protection against sexual harassment for persons who provide services pursuant to a contract.
And California Civil Code Section 51.9 addresses contractors (non-employers) specifically.
Maybe I'm misundertanding you, but it almost appears to me that your contention is that sexual harassment can occur between two people without any kind of working connection whatsoever? That's the impression I get from this statement: “And stalking is a form of sexual harassment... as is some touching (if it in fact constitutes a battery) and both are crimes (albeit misdemeanors).”
That is not my contention at all. My contention is that you’re confusing “workplace” sexual harassment (which means there is an employment relationship) with “non-workplace” sexual harassment (which means there is NOT an employment relationship). “WorkING”… and “workPLACE” are NOT synonymous… for purposes of the law.
Stalking is a form of criminal harassment subsumed under the states' various penal codes. (649.9 CA; 13-2923 AZ; 200-575 NV; etc.) It is not "Sexual discrimination" under Title VII Subchapter VI, Chapter 21, Title 42 of the 1964 Civil Rights Act as amended which is what we are talking about on this thread.
Ummm… first, I was not aware that we were discussing sexual “discrimination,” per se. True, sexual harassment is a FORM of sexual discrimination; however, I was of the understanding that we were discussing sexual “harassment” specifically and stalking is indeed a form of sexual harassment. Here are a couple/few items of support:
http://www.sexualharassment.uiowa.edu/faq.php (See Question 19)
http://www.sexualharassmentsupport.org/Stalking.html
http://manuals.ucdavis.edu/ppm/380/380-12.htm (See Section V.C.2.)
Second, my statement was that stalking… and certain “touching”… is a form of sexual harassment (and it is) AS WELL AS a crime. This is true. If I consistently call you, email you, send you letters, etc.… because I want sexual favors from you… I am not only sexually harassing you, but perhaps even stalking you, which is a crime. If I “touch” you unwelcomingly, that, too, can be a form of sexual harassment… and if I do it to the point it is can construed as battery that, too, is a crime.
Those are two very different things. Stalking can include a sexual element (i.e. Obscene phone calls) but it very often does not have anything whatsoever to do with sex or gender. (i.e. Harassment of a celebrity --John Lennon was shot by a stalker)
You are correct: very often it DOESN’T have anything whatsoever to do with sex or gender. However, WHEN IT DOES… it is also construed as sexual harassment. Surely, you “get” that.
Like all criminal offenses, stalking is presumed to be unwelcome from the beginning and there is no "Three pronged test" with stalking.
Ahh, a “law” student, are ya? Well, I believe there is both a federal AND state (at least, in California) “test” as to stalking. Federally, it’s 18 USC 110A, which has four “prongs.” In California, it’s Penal Code Section 646.9. And note, there the “test” is 2-3 “pronged” and includes conduct that must be “willful”, “malicious,” and “repeated”… “following” OR “HARASSING.” There must also be a “credible threat” AND “intent to place a person in fear for his or her safety… or that of his or her immediate family.”
The distinction I'm drawing here --and maybe I'm not doing a good job at explaining it; is that many of the things that can constitute sexual harassment are not criminal offenses in and of themselves.
I absolutely and totally agree!
Making offensive comments of a sexual nature can get you fired; it can get your employer sued; it can even conceivably get you sued, but it is not going to get you prosecuted because it is not a crime in and of itself.
Again, you are in error, dear TD. There does not need to be crime in order for me to sue you in such an instance. I offer the following examples:
http://womenscenter.virginia.edu/sdvs/legalrights/civilsuit.html
http://en.wikipedia.org/wiki/Paula_Jones
And the following from the U.S. Dept. of Transportation website:
Can individuals be legally liable for harassment, or just employers? - “Some courts have held that individual employees cannot be liable under Title VII. Some state laws, however, do impose personal liability on individuals for perpetrating harassment. While employers often provide a legal defense for supervisors in a lawsuit, an employer may be entitled, after a court decision against it, to recover damages and legal expenses from a supervisor whose unauthorized conduct created the problem.” http://www.dotcr.ost.dot.gov/Documents/complaint/ Preventing_Sexual_Harassment.htm
AND… if the incidence was SEVERE enough… I MIGHT even be able to sue you as a TORT. For instance, for ASSAULT… and perhaps even INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. AND… if you TOUCHED me during such harassment, and I can prove that such “touching” constituted a BATTERY… I can sue you for that, too!
Rudeness and offense are one of the prices we pay for freedom of speech. Criminal law does not protect us from being offended.
So, YOU consider “sexual harassment” as a situation where someone was simply exercising their “freedom” of speech, albeit perhaps rude and offensive in the process? Really… Hmmmm… perhaps I was wrong, then. Perhaps YOUR name is/was actually “Bob,” even now, not just in a former life (my DEEP apologies to you, dear JD! Methinks I misspoke!)
We can agree to disagree; we can agree that we are both talking about different aspects of the same thing; we can agree that we've both simply misunderstood each other There are certainly positive ways to end this thread. But telling me that I'm misleading people is unfortunately, not one of them.
I agree perhaps we should just disagree. I agree perhaps we are both talking about different aspects of the same thing (“working” vs. “employment”). I agree that perhaps we misunderstood one another (though, I think that you misunderstand the terms you are using is closer to the truth). And I DO want to end this on a positive note. BUT… you ARE misleading people:
1. There does NOT need to be an employer OR a “workplace” for sexual harassment to take place;
2. An independent contractor is NOT necessarily an employer OR an employee;
3. Stalking CAN be a form of sexual harassment;
4. There ARE actually “prongs” to test stalking;
5. You CAN be sued, personally, depending on your state; and
6. Sexual harassment is NOT simply someone exercising their freedom of speech OR being “rude.”
So, what “year” are you? I’m thinking maybe a 2L. Because certainly, you would (indeed, SHOULD) have known a little more as to all of these things by year 3…
Peace to you, dear TD!
A slave of Christ,
SA… ummmm, JD
