crs@lanl.ARPA (12/12/85)
Followups to: net.legal
Distribution: usa
References: <704@petrus.UUCP> <119@ISM780C.UUCP> <782@rtech.UUCP> <34503@lanl.ARPA> <785@rtech.UUCP> <2368@amdahl.UUCP>
> When all else fails, hire a lawyer and sue the socks off everyone [(-:]!
Deletion of the smiley face leaves a description of an attitude that
is all too prevalent in modern society.
I hope I successfully directed followups to net.legal since they
obviously don't belong in net.women. Please check this when follow
ups are posted. Thanks.
--
All opinions are mine alone...
Charlie Sorsby
...!{cmcl2,ihnp4,...}!lanl!crs
crs@lanl.arpaT3B@PSUVM.BITNET (12/13/85)
The reason one would want a rule holding a company liable for
sexual harassment is to motivate companies to train their
employees to avoid sexual harassment. When you make the
company responsible for the job-related actions of its
employees, the company will develop methods to control
those actions. And sexual harassment is both a personal
affront *and* a job-related matter, as it usually occurs
in the context of a hierarchical relationship, and occurs
in such a way as to place the victim in both sexual and
professional jeopardy. That's why companies should be held
responsible, in my view.
Tom Benson
Department of Speech Communication
The Pennsylvania State University
227 Sparks Building
University Park, PA 16802
814-238-5277
:akgua,allegra,ihnp4,cbosgd:!psuvax1!psuvm.bitnet!t3b (UUCP)
t3b%psuvm.bitnet@wiscvm.arpa (ARPA)
T3B@PSUVM (BITNET)
T3B@PSUVM.BITNET (12/19/85)
Tim Smith asks, about company liability for sexual harassment, an
interesting question:
>So what is a company supposed to do? Should the bug all the offices so
>they can keep track of what every employee is doing?
Although it seems to me that under circumstances where the company
could be expected to exert any control (through policy, training,
company tradition), then they are responsible for the actions of
their employees as a matter of legal remedy: as when a woman fired
for resisting sexual harassment sues for damages and/or reinstatement.
But we must grant that the world isn't perfect. No, Tim, your question
is reasonable, and no, I would agree with your implied point that
companies can only exert control over their employees up to a point.
We seem to agree that the employees' right of privacy ought to prevent
the company from bugging their offices, opening their mail, monitoring
their phones, screening their e-mail (!).
The general principle governing such cases as this -- and I really
think that means all cases of public policy -- is that in a particular
case we are trying to make policy or adjudicate a remedy because rights,
principles, or interests are in conflict with each other--and none of
those rights, principles, or interests are inherently without merit.
In the particular sort of sexual harassment case we are talking about,
it seems just to argue that (1) the company ought to be held accountable
if it does not enforce policies against sexual harassment; (2) the
employee should *also* be held personally accountable for engaging in
sexual harassment; (3) and yet, there must be limits on how far companies
can go in enforcing their policies.
In fact, this will result in cases where corporate bodies must assist
in remedying a situation occuring under their jurisdiction, but over
which they were not permitted to have absolute control.
I don't mean to be paradoxical. But isn't justice and policy always
a matter of competing rights and interests, rather than of compelling
facts and perfect logic? If the facts and logic absolutely dictated
our public life, then we wouldn't need policies -- just police.
Sorry for a long posting; I'm trying to indicate my respect for an
argument whose conclusion I disagree with.
Tom Benson t3b at psuvm (bitnet)
Penn State University
dawn@prism.UUCP (12/20/85)
> >Here is my original question: > > Why should a company be responsible if they 1) are not aware > of the sexual harrasment, and 2) there is no way than can > reasonably be aware of it? > In Boston recently a truck driver ignored or didn't see signs warning of a low bridge clearance, and ran into the bridge, causing extensive damage. For this he was fined ($200 I think). Because he was operating a company-owned truck at the time, his employer was also fined the cost of repairing the bridge (around $200,000). Obviously, the employer had no way of knowing at the time that their driver would, through his negligence, destroy a bridge, nor could they resonably have been aware of it unless the driver telephoned his intentions to his boss that morning. Nevertheless, the employer was still held to be responsible. Why? Maybe employers are responsible for insuring that the people they hire are competent to handle the jobs they do, especially when the incompetent performance of those jobs affects the lives or well-being of others. More likely, though, it is because a corporation, by definition, is a body formed and authorized by law to act as a single person, although constituted by one or more persons. By this definition, the entire body is responsible for the actions of any individual member of the body, much like *you* would be responsible should your hand choose to steal something. Since the corporation is defined as a single person, (and with legally endowed rights and *duties*), the issue of whether or not the corporation knew of the action(s) of its member(s) is purely academic. So, if a manager is harrassing an employee -- because of sex, or race, or creed -- the corporation is harassing the employee, and should be held accountable. ------------------------------------------------------------------------------ Dawn Stockbridge Hall {cca, datacube, ihnp4, inmet, mit-eddie, wjh12}... Mirror Systems, Inc. ...mirror!prism!dawn "If all possible objections must first be overcome, then nothing significant will ever happen." ------------------------------------------------------------------------------
ljd@mirror.UUCP (12/20/85)
> /* Written 5:01 pm Dec 19, 1985 by dawn@prism.UUCP in mirror:net.legal */ > > ...a corporation, by definition, > is a body formed and authorized by law to act as a single person, > although constituted by one or more persons. By this definition, the > entire body is responsible for the actions of any individual member of > the body, much like *you* would be responsible should your hand > choose to steal something. Since the corporation is defined as a > single person, (and with legally endowed rights and *duties*), the > issue of whether or not the corporation knew of the action(s) of its > member(s) is purely academic. I wonder if it would be any different if a particular company is a partnership or an entity owned by a single proprietor -- rather than a corporation?
dave@lsuc.UUCP (David Sherman) (12/30/85)
In article <6100011@prism.UUCP> dawn@prism.UUCP writes: > > In Boston recently a truck driver ignored or didn't see signs warning > of a low bridge clearance, and ran into the bridge, causing > extensive damage. For this he was fined ($200 I think). > Because he was operating a company-owned truck at the time, his > employer was also fined the cost of repairing the bridge (around > $200,000). Obviously, the employer had no way of knowing at the > time that their driver would, through his negligence, destroy a > bridge, nor could they resonably have been aware of it unless the > driver telephoned his intentions to his boss that morning. > Nevertheless, the employer was still held to be responsible. You're glossing over an important distinction between a fine (which is a criminal or quasi-criminal penalty and serves social goals of justice, deterrent, etc.) and damages, which are awarded to compensate for damage done to someone. The distinction gets blurred, particularly in the U.S., by concepts such as punitive damages, and also by restitution awards at criminal trials. However, there is a clear distinction. It's likely, from the facts you reported, that the $200 was a fine, perhaps for "careless driving" or the appropriate Massachusetts equivalent. The $200,000, on the other hand, would have been an award to the city or whoever owns the bridge, to pay them back for the cost of repairing it. Damages need carry no stigma; you've broken something so you pay for it. It's quite normal in tort law for a corporation to be vicariously liable for the acts of its employees. This is usually IN PLACE OF personal liability of the employee, particularly where the employee is acting in the normal course of his duties (in this case, driving for the employer). The theory behind it relates primarily to the fact that the employer is better able to estimate and insure against the risks posed by having a pool of employees who go out and damage things. Of course, the fact that the employee is not liable in tort (since his employer is) doesn't take away from the fact that he broke the rules of the road, or whatever, and therefore a (quasi-)criminal fine will still apply to him. Dave Sherman (yes, I'm a lawyer) The Law Society of Upper Canada Toronto -- { ihnp4!utzoo pesnta utcs hcr decvax!utcsri } !lsuc!dave
dawn@prism.UUCP (01/02/86)
/* Written 2:11 pm Dec 30, 1985 by dave@lsuc in prism:net.legal */ >You're glossing over an important distinction between a fine >(which is a criminal or quasi-criminal penalty and serves >social goals of justice, deterrent, etc.) and damages, which >are awarded to compensate for damage done to someone. Forgive my imprecise use of the language. Since I am not a lawyer, I was using the word "fine" in the colloguial sense, which according to Webster is a forfeiture (the loss of money or property because of a breach of a legal obligation) or penalty (disadvantage, loss, or hardship due to some action) paid to an injured party in a civil action. "Damages" -- compensation in money imposed by law for loss or injury -- would suit my argument as well. I am not concerned with whether the criminal actions of the employee make the company also guilty of a crime; I am trying to show a circumstance in which a financial judgement was made against a company for the damages caused by the actions of an employee, when the company could not possibly have known about those actions in advance. >It's quite normal in tort law for a corporation to be vicariously >liable for the acts of its employees. This is part of the point that I was trying to make. The other part of my argument is that *companies* (or company officials...) could not have known in advance about the acts of its employees for which companies have often been vicariously liable. Given this, my conclusion is that there is no rational reason to insist that the company not be liable in the same sense for sexual harrassment, on the flimsy excuse that it didn't know, or had no way of knowing about the harrassment. Do you agree or disagree? ------------------------------------------------------------------------------ Dawn Stockbridge Hall {cca, datacube, ihnp4, inmet, mit-eddie, wjh12}... Mirror Systems, Inc. ...mirror!prism!dawn "If all possible objections must first be overcome, then nothing significant will ever happen." ------------------------------------------------------------------------------