Thursday, February 28, 2008

The Pay Gap...Is it Discrimination??

I was sitting in my sociology class today and we began discussing gender roles in the workplace. My professor started off the discussion by talking to us about the pay gap between men and women in the workplace. Statistically, women make $.76 for every $1.00 a man makes at the same job. I found this disturbing and sat there wondering how it could be true if Title VII is being enforced correctly. I did a little bit of research and found an article talking about how the following factors contribute to this gap:

1)Women work full time less than men and take longer time periods off.
2)Men with children get an earnings both while women lose earnings. ( I don't understand how this is true or how it is fair at all)
3)Women have fewer years of work experience.
4)And the most disturbing: Despite external factors, men get a bonus just for inherently being men.

Now if I found out that a male equal was getting paid more than me at my job I would be quick to look for a discrimination lawsuit and I'm assuming that other women would as well. So I still can't understand why this pay gap exists and how we can get rid of it and eliminate discrimination for good. Thoughts???


Wednesday, February 27, 2008

Professor Accused of Sexual Harassment Resigns

So I was reading a few articles on sexual harassment, when I came across this article. It made me think about the story Oleanna, which we have to read for class. I found it interesting that Professor William Bender was not taken out of the system earlier, especially if he had so many complaints against him. The fact that they still let Professor Bender teach online classes, after the university found him guilty of sexual harassment, makes me wonder how concerned the University of Georgia really is about this matter. He was teaching online classes, but if a student did have a question, she/he could go into his office hours or they could talk using e-mails. So it is very possible that the sexual harassment could have continued, it just might have taken a different form. The fact that Professor Bender made the resignation himself makes me wonder, if he was just so sick of hearing about it or maybe his subconscious was eating away at him that he finally wanted it. Regardless, he won't be teaching this upcoming fall.

What Professor Bender did was wrong, but where do we draw the line when it comes to the student/professor relationship? How far is too far? Should the University of Georgia (or any university where this could be taken place at) be held accountable for not doing anything sooner? I think that this is something that many of us really don't think about because we associate (for the most part) this happening in the workplace.

What do you all think about this issue? And if your professor seemed to be making an advance on you, would you report it? Why or why not?

Here is the link if any of you are interested in reading the article:http://chronicle.com/news/article/3836/professor-accused-of-sexual-harassment-resigns?nb

Tuesday, February 26, 2008

Inside or Outside the Scope of Employment... does it really matter?

The Faragher versus Boca Raton case states, “A ‘master is subject to liability for the torts of his servants committed while acting in the scope of their employment.’” What is the “scope of employment” anyways? The reading defined it as including conduct "of the kind [a servant] is employed to perform," occurring "substantially within the authorized time and space limits," and "actuated, at least in part, by a purpose to serve the master," but as excluding an intentional use of force "unexpectable by the master." It seems to me that this says that the organization can not be held liable for sexual harassment cases if, when the employer harasses the employee, he is not doing his ‘specified job’ during the time of the harassment. Under this definition, an organization will not be liable for crude comments made while the man is getting a soda from the vending machine, or refilling his coffee in the morning. Because these actions are not within his job description, he was not within the “scope of employment.”

The reading continues to say that the Courts of Appeals have typically held, or assumed, that conduct similar to the subject of complaint in the Faragher and Harris cases fall outside the scope of employment. “The courts have emphasized that harassment consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer. For this reason, courts have likened hostile environment sexual harassment to the classic ‘frolic and detour’ for which an employer has no vicarious liability.” In my opinion, this is completely unfair! Just as organizations, in the realm of electronic monitoring, are held liable for the conduct of their employees during work hours or on company property/equipment, they should be held liable for sexual harassment between employees during working hours or on company property. To me, actions taken or words spoken during working hours ARE within the scope of employment… you are, in fact, at work! I am not sure I understand the difference. For instance, take into consideration the Doe vs. XYC case:

“With actual or imputed knowledge that Employee was viewing child pornography on his computer, was defendant under a duty to act, either by terminating Employee or reporting his activities to law enforcement authorities, or both? We conclude that such an obligation exists. The existence of a duty is a matter of law, ‘deriv[ing] from considerations of public policy and fairness.’ …we agree with plaintiff that defendant had a duty to… take effective internal action to stop those activities, whether by termination or some less drastic remedy. That section places upon a master, in this case defendant, the duty to control his servant, here Employee, while the servant is acting outside the scope of his employment, as in the present case, to prevent the servant from ‘intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them.’ The servant was ‘using a chattel of the master’ and the master both ‘knows or has reason to know that he has the ability to control his servant’ and ‘knows or should know of the necessity and opportunity for exercising such control.’ Under these circumstances, a risk of harm to others was ‘reasonably within the [master's] range of apprehension.’”

Why is XYC liable and the city of Boca Raton is not when, in both cases, the employees were acting outside the scope of employment? In my opinion, these cases are not that different; therefore, the same rule should apply. Either employers should be held liable for actions outside the scope of employment, as in the XYC case, or they should not, as in the Harris and Faragher cases.

Do you agree or disagree, and why?

Sunday, February 24, 2008

Doctor-Patient Sex Discrimination: do patients have the right to discriminate?

I have a friend who is currently completing his third year in medical school. This year and then next requires all students to complete rotations, both in-patient and out-patient. This basically means that the students get to check patients and scrub in on surgical procedures in order to better educate themselves and gain experience. My friend is finishing up an 8 week rotation in OB and gynecology. He has, as all other students in their respective rotations, scrubbed in on numerous surgeries of different kinds. Last week, he was scheduled to scrub in for a common procedure. The resident heading the surgery happened to be female, as did the nurses. My friend, by chance, was the only male to be present for the operation. after scrubbing in for a surgery, the woman receiving the procedure refused for him to be in the operating room, claiming she did not want any males in the room during the operation. He had to leave the room and wait for the procedure to finish before receiving another assignment from his resident.

Patients are notified when students will be in the operating room. They have the right to refuse students to participate in their procedures. Because of the circumstances, the patient was able to throw him out because he was a student. In her eyes however, she did not mind that he was a student, only that he was male. In talking about Title VII during class, I got to thinking about this incident. Although it is not really an employer/employee relationship, has this patient committed sex discrimination? What would she have done had the resident heading the surgery been male; not had the operation or rescheduled? Regardless of their sex, should patients even be allowed to kick students out of the room? It can be detrimental to society to inhibit the learning of medical school students. Just think, if everyone kicked the students out, they would have zero experience or practice before becoming ‘real’ doctors! Would you want someone to operate on you for the very first time? Every doctor performs their first procedure at some point, and it is usually under a resident’s supervision. If patients continue to refuse students to scrub in, this will no longer be the case, leaving society with very inexperienced doctors.

What are your thoughts on the sex discrimination in this case? What about allowing patients to refuse treatment from medical school students?

Friday, February 22, 2008

Who's Responsible?

I came across this article and it instantly reminded me of a previous class discussion regarding how one knows their legal rights when they're employed. Should the managers be teaching their employees? Should these topics and the like be integrated into a mandatory undergraduate curriculum?

Vicki Wilmarth, a lawyer specializing in employment law, attempts to keep everyone informed on the latest updates by publishing articles. She notes employment law is constantly being revised and updated. In this specific column she describes a change in employment compensation to military families, a new I-9 form, and a recent case in which an employer sued their employees for breaches of contract.

I would personally like to see topics relating to employment law tied into a college curriculum. Many of the topics we have discussed in class have come as a complete surprise to me, which is scary considering I will be entering the workforce next year. I think these topics would be very relevant in career development courses which many majors and programs require. Also, I believe employers do have a responsibility to inform their employees on major, applicable changes in the law. Does anyone else have a suggestion on how everyone can get on the same page? Who's responsible for keeping everyone up date?

Wednesday, February 20, 2008

Is 15 or less fair?

In class today, Prof. Prenkert said how businesses with fewer than 15 employees are exempt from the rules of Title VII (our class book also said they were exempt from the Americans with Disabilities Act).

I know a few of you gave an example of why it is OK, but I still found myself shaking my head in confusion. I do not think it should matter how many employees a company has, they should still be liable to not discriminate and follow laws pertained to larger organizations. Should those companies be able to discriminate based on race, color, religion, sex, or national origin because they have 15 employees and not 16? It just does not add up to me!

I would be really interested to read opposing views. Examples? Devils Advocates?

So, what do you think?

More on Sexual Offenders

We have had a few class discussions already regarding sexual offense cases: Doe v. XYC Corp. and K.M. v. PUBLIX Super markets. As soon as we were discussing it, I thought about an email I got about a year or two ago that gave me a link to the Family Watchdog website. Once you hit the link, you put in your address (throughout the U.S.) to see the different offenders in your area, which range from offense against children to sexual battery. There picture, age, address, offense, etc. is listed.

I found it really interesting...just a bit scary...but worth it.

Here is the link below:

http://www.familywatchdog.us/

Let me know what you think.

Tuesday, February 19, 2008

Class Discussion...Again

I am not trying to belabor Monday's class discussion concerning the K.M v. Publix case, but the fact that the court did not find Publix liable for K.M's molestation really bothers me. As mentioned in class, the legal ruling is logical, but ethics are absent from the ruling. However, in my opinion, there is a legal aspect that the courts seemed to skip over. The courts ruled that Publix was not responsible for Woodlard's actions outside of work because there was no "special" relationship entitling Publix to inform the third party of Woodlard's past. This,in theory, makes complete sense, seeing how it would be very intrusive for employers to monitor and reveal to others an employee's outside activities. However, in this case, I argue that there is a "special" relationship between Publix, Woodlard and K.M's mom. All three are employees, and the relationship between Woodward and K.M's mom was established at work. In addition, the fact that Publix would be revealing the illegal activity of Woodward, leads me to believe that Publix had the right and the responsibility to inform K.M's mom of Woodward's illegal activity. Furthermore, K.M is a minor, 7 years old; she has no concept of protecting herself or making legal charges. When dealing with illegal activity that affects minors, it seems that Publix should be obligated to inform others when a reasonable relationship has been established between parties.

I fully understand how placing this type of legal obligation on an employer could create a messy situation concerning privacy and monitoring of outside activities. However, this case doesn't present issues of privacy, so much as it presents issues of protecting minors from incurring illegal harm when they can't protect themselves. I also understand that some of the fault falls on K.M's mother for not checking out Woodlard's past, but I think that her oversight is outweighed by the lack of legal obligation to ensure that sexual preditors are not a threat to society.

Am I thinking too much into this case, or is the law slacking a bit? Let me know what you think!

Tuesday, February 12, 2008

Rewards for Whistle Blowers: A Solution for SOX? (By Guest Blogger Terry Morehead Dworkin)

As promised, here is a guest post by whistle blowing scholar Terry Morehead Dworkin:

"Merck to pay $671 million for bilking Medicaid." This headline from Friday's paper illustrates the tremendous success the False Claims Act has had in recovering large sums for the federal treasury. In this case Merck settled charges that it routinely overcharged the government for its most popular medicines. The whistleblower who brought the evidence forward will receive about $68 million for his role. The Justice Department is looking into 630 other whistleblowing claims. In almost all False Claims Act cases in which there is a recovery, the whistleblower gets a million or more. The reward structure has greatly increased whistleblowing about fraudulent claims for federal funds.

The Sarbanes-Oxley Act (SOX) relies on whistleblowers to help enforce it. It tries to promote whistleblowing through requiring companies to set up anonymous whistleblowing procedures, protecting whistleblowers from retaliation, and providing criminal penalties for intentional retaliation. It does not give rewards though. While most employees who work in companies covered by SOX thought they were protected when they blew the whistle, this has proved to be an illusion. SOX whistleblowers are most commonly fired, and they have been unable for a variety of reasons to get redress. Not surprisingly, whistleblowing has gone down under SOX. Because of these problems, many are calling for changes in the law, including a reward system similar to that in the FCA.

Suppose that you are working for a company and that you discover that it is misleading shareholders and the public about its financial stability. Would you blow the whistle? Would you be more likely to if you got a reward? If your answer to the latter is yes, how much do you think would be just compensation for the risks invovled? Who should have to pay for the reward?

Monday, February 11, 2008

The FBI's Growing Database

As I browsed through the news the other day, I came across an article which perfectly relates to last Monday’s class discussion on privacy. The article discusses the FBI’s desire to form a database of palm prints, eye scans, and tattoo mapping, in what they call an effort to better identify criminals and terrorists. Although the FBI claims that the database is "important to protect the borders to keep the terrorists out, protect our citizens, our neighbors, our children so they can have good jobs, and have a safe country to live in," privacy experts aren’t so confident.

As one opponent explains, “It's the beginning of the surveillance society where you can be tracked anywhere, any time and all your movements, and eventually all your activities will be tracked and noted and correlated.” I mentioned earlier in class about my time in London and how the privacy is both 1) much more closely tracked, and 2) much more stringent in its policies. Now, I’m starting to feel that same pressure here in the states.

At first glance it may not seem to be a huge deal that the FBI wants to add eye scans, palm prints, and tattoo and scar mapping to the existing fingerprint database. I mean, that database is used for criminals, right? And I’m no criminal, you may think. But no, the database isn’t just reserved for these rebellious groups. Now, as the article explains, “more than 55 percent of the checks the FBI runs involve criminal background checks for people applying for sensitive jobs in government or jobs working with vulnerable people such as children and the elderly.”

As Barry Steinhardt of the American Civil Liberties Union explains “This had started out being a program to track or identify criminals…now we're talking about large swaths of the population -- workers, volunteers in youth programs. Eventually, it's going to be everybody.” I’m in the market for a job and I don’t think I’d be pleased with a database that treated me in a way that used to be reserved for criminals. Plus, where does all this information and tracking end? IS there an end?

Wednesday, February 06, 2008

The "Work Spouse": Harmless Flirting or Slippery Slope to Harassment?

CNN informs us of the phenomenon known as the work spouse.

If you were an employer/manager and saw this sort of relationship developing between two of your employees, what would you do? To what extent are you concerned about the relationship going too far or falling apart and resulting in tension, reduced productivity, or harassment claims/liability? To what extent would you think it important not to interfere with your employees' personal (but perhaps not, strictly speaking, "private") relationships?

Labels: ,

Tuesday, February 05, 2008

Social Networks

Apropos of our discussion yesterday of privacy and social networks is this story from Newsweek entitled The Morning After. The article details allegations of sexual assault on the campus of Lewis & Clark University, which were disseminated widely through a "private" Facebook group.

Though this is clearly not an "employment" story, it does illustrate how the plugged-in world of on-line social networking has changed and will continue to change our experience and expectations of privacy.

Monday, February 04, 2008

Genetic Information: A new realm of discrimination?

The major topic discussed today in class was the privacy of individual information, and how different companies utilize its disclosure to profit from interested 3rd parties and the like. We mostly discussed companies like Kroger, Marsh, and Facebook which manage personal information mostly for contact, advertisement, and recruiting purposes (Facebook is a useful tool for potential employers seeking information on their applicants). All these businesses rely on information one puts on an application, or a profile, meaning that the user still exercises control of the information disclosed. However, what would be the modern day consequences be if information was available that an individual had no control over? More specifically, genetic information. I'm not meaning to be coy or far fetched with this blog post; this is a very controversial and relevant topic in today's realm of Biotechnology. What happens on TV shows, like CSI, is a small and forensic glimpse into the power that genetic information currently holds. What are the regulations and potential repercussions that need to be considered in the disclosure of genetic information? It seems that we are on a potential brink of a new wave of discrimination; from employers, insurance companies, and society in general - based on our genetics.
Nowadays, screening for diseases can be done easily and efficiently on individuals in utero (during pregnancy) and in vitro (externally handled and minimally invasive) per request of the parents or individual, respectively. Detection of genetic diseases and predispositions can be known long before the disease has its onset, yet gives the individual valuable information on their future health. Parkinson's, Alzheimer's, breast cancer, and cystic fibrosis are all examples genetic diseases that can be screened for at most major hospitals. Advances in detection methods are made daily - advancing the fields of medicine, forensics, and science in general. Will genetic information be protected and regarded as private information, or will it be disclosed to employers, insurance companies, and schools where it is vital to the profitability and management? Would it be fair for an employer to be informed that an applicant will have Alzheimer's onset during their term with the company? What about a construction company that has a choice of hiring someone who is on a genetic path for Parkinson's? This information is obviously crucial on both ends of an employment contract; but who will profit from its disclosure?
The notion that personal information is generally regarded as property allows companies to enter into 3rd party contracts just like what we discussed in class. If genetic information is regarded as personal property, it opens the door towards this new genre of discrimination. The sad truth is that most people have no control over genetics, as opposed to the control we have over our Facebook profiles. Depending on the legislation, genetic profiles could be regarded as confidential, viewed for insurance and employment purposes, or publicly available upon an individual's discretion. Clearly, a genetically superior individual would be more likely to let employers or insurance companies know his/her profile, whereas an individual with a future cancer onset would be more reluctant. This same debate parallels what was discussed in class today - although I realize Facebook and genetics are two different beasts.
The scientific progress towards more precise methods of genetic fingerprinting is exponential, to say the least. State-of-the art detection equipment is outdated within months, if not weeks (visit the Center for Genomics and Bioinformatics in the Jordan Hall basement and you'll see what I'm talking about, or just browse www.sciencedaily.com). This poses both great hope and threat for all of us that have some sort of genetic ailment. Yes, easy screening opens a venue towards cures and remedies - but it also opens the door towards simpler testing, thereby easing access to information. I hope that adequate rules and regulations are put into place to moderate disclosure, keeping the job market a fair a non-discriminant system. This controversy seems like science fiction but unfortunately "Gattaca" (the 1997 movie) is a potentially near future. I don't mean to cast a shadow on the future - I am normally an overly optimistic person. However, I believe that information with such potential must be handled with the right hands and extremely carefully.

Labels: ,

What do you think?

My friend recently came upon a dilemma that I thought was perfect for our blog because I wanted to hear what all of you thought. He is a tutor for a couple of classes, like one of those that posts on OneStart, facebook, etc. He had been in contact with this one individual that was willing to pay him almost 3 times the original rate! But of course he wanted more than just tutoring. For the extra pay, my friend was going to have to do everything but sit in on the tests. He was going to have to complete all the homework, papers, cheat sheets for the tests, and the day of the test explain how to do the basic stuff so the kid could do enough to pass the tests. He also told my friend that no one could know about the "help" and he would have to keep in confidential. Oh and to make things interesting lets say that the student is a scholarship athlete. What actions do you take? Blow the whistle? Take the job? Do nothing?

Saturday, February 02, 2008

Pucker Your Lips and...Blow (sometimes)

I found Beverly K. Phillips’ article “Pucker Your Lips But Never Blow” to be quite controversial. The majority of her article talks about Amy Van Ostrand, the public relations and outreach coordinator for the Hamilton Country Humane Society (HCHS). Phillips believes that Van Ostrand should not have spoken out publically against the Humane Society. To put it in her own words: “Laws or no laws, licensing or no licensing, I believe there's an expectation and duty to maintain confidentiality if acting in a public relations capacity, and certainly if it's included in ones official job title as in the case of Van Ostrand.”

What bothered me was the way that Phillips spoke about Van Ostrand, in a particularly negative and accusatory rhetoric. She heartily points out that Van Ostrand “has given a black eye to every public relations professional who works hard, year after year after year, to build the confidence that's necessary to effectively counsel upper management.” This was when I started to get really annoyed. To preface this, I want to make it clear that I understand and agree with Phillips’ fundamental argument: a whistleblower should do all that he/she can to keep the complaint inside the company and let the company work it out internally before releasing information to the media.

However, as I mentioned in class when we spoke about this, I feel that what is most important is to put Van Ostrand’s case into perspective. As a reader, we have no background as to what steps she took to institute change within the HCHS. And Professor Prenkert backed up my theory by explaining that Van Ostrand did, indeed, take many steps before she blew the whistle publically. In the article, Van Ostrand is even quoted as saying “I tried desperately to protect the agency from public embarrassment, putting the agency before myself.”

I feel that it is wrong to make one’s allegations public as a first step, but after one has tried time and time again to implement change, is it still wrong to go public? Perhaps it is the only way to force policy changes. Would Enron still be alive if it hadn’t been for Sherron Watkins? Would the company have changed its illegal accounting practices and cleaned itself up, or would someone else have blown the whistle?

I want to end by focusing on Phillips article, which, as I mentioned earlier, was a bit abrasive and accusatory. Following her comment about giving PR professionals a black eye, she closes her argument by saying, “I hope she'll consider this next time she takes a job that involves public relations in any way, shape or form.” Yes, this is an editorial. But no, I don’t agree with what Phillips says here. If, after several attempts, a person has failed to implement change in a crooked business, then I feel that the individual has the right to take it to the government, media, or wherever it needs to go to be heard.

Friday, February 01, 2008

Does an individual's upbringing REALLY matter?

When I was reading "Persons of the Year 2002, The Whistleblowers: Cynthia Cooper, Coleen Rowley, and Sherron Watkins," I was surprised towards the middle of the article when it stated:

"What more do they have in common? All three grew up in small towns in the middle of the country, in families that at times lived paycheck to paycheck. In a twist that will delight psychologists, they are all firstborns. More unusually, all three are married but serve as the chief breadwinners in their families. Cooper and Rowley have husbands who are full-time, stay-at-home dads. For every one of them, the decision to confront the higher-ups meant jeopardizing a paycheck their families truly depended on."

This struck me as strange because it seemed out of place in the article. For one thing, why did the interviewer think it was relevant to find a commonality among the three women? Why couldn't they each be recognized for their specific actions?

I was also surprised when the similarities went back to their childhood upbringing. (Specifically when it noted that they were all first borns.) I am not trying to say that their backgrounds do not have anything to do with their actions in the future (because they do), but do you believe it holds a SUBSTANTIAL part of the positions they are in now -- as whistleblowers? They could have had a poor childhood and done the same thing within their company...right?