Analyzing Liability 3

(Analyzing Liability 3)

Summary

The complaint letter is by Mr. Thomas Lee about his disappointment with the company for failing to ensure a secure workplace for individuals from all backgrounds and nationalities. Mr. Lee is an American of Chinese origin who complains of racial discrimination at the workplace after being accused of bringing COVID-19 to the workplace because he is Chinese. The employee presented a verbal complaint to the supervisor, who failed to listen to him and questioned Mr. Lee’s customs and beliefs. Mr. Lee says the workplace is hostile and intimidating, and he has received threats from other employees who have singled him out for allegations of spreading the virus on the basis of his origin and ethnicity, sending him negative messages through texts, emails, social media and telephone. Mr. Lee continues to point out that several people have died after exposure to Covid-19, insisting the company’s lapse in judgement and preparedness was the primary reason. Furthermore, another letter by Karen Small, also a security guard, seems to confirm the allegation because she points out that she thinks she acquired the virus from Mr. Lee, who the company allowed to spread the disease. Mr. Lee is an American Citizen and has lived in Alabama almost his life and cannot contemplate why he is being singled out for spreading the virus on the mere basis of being Chinese. Mr. Lee says the company has done nothing to address the situation and lacks leadership, which encourages the behavior. He is considering a lawsuit if the issue is not dealt with. (Analyzing Liability 3)

Associated U.S. laws or regulations and how they are relevant to the identified liability

First Mr. Lee complains of racial discrimination at the workplace, which is addressed by Title VII of the Civil Rights Act of 1964. This Act makes it illegal to discriminate against people on the mere basis of their color, race, religion, national origin or sex. For example, Hahn et al. (2018) provide that this Act is fundamental in ensuring racial and ethnic equity and eliminating discriminatory behavior, implying the Act corresponds to the identified liability of preventing racial discrimination based on color, race, gender, or nationality. The law protects all employees from retaliation if they decide to forward a claim on discrimination at the workplace. Mr. Lee also points out that most people acquired and were exposed to the virus because of the company’s lapse in judgement and preparedness, which is addressed by the Occupational Safety and Health Act of 1970, which requires employers to keep the workplace free from hazardous conditions, stressing employees’ rights to information regarding the dangers in their job. For example, in Michaels & Wagner (2020), employers are required by law to offer an environment that protects employees from COVID-19 per OSHA provisions. Michaels & Wagner (2020) provides that only employers can make the workplace safe by enforcing OSHA guidelines, and a failure to do so is considered a non-adherence and non-compliance. This scenario implies that the OSHA is relevant to the identified liability of keeping employees safe from Covid-19 at the workplace. The law also protects employees from being punished if they decide to exercise their rights per OSHA. (Analyzing Liability 3)

Analyzing Liability 3

The potential harm to the company, its employees, and its workplace culture that could result from a lawsuit emanating from the selected complaint

If the company is found liable for non-compliance with Title VII, it could face penalties for intentional discrimination, enforced as either compensatory or punitive damage up to a maximum provided by the Title VII of the Civil Rights Act of 1964 according to the number of employees in the company. The company would have to pay either back pay, compensatory damages, or punitive damages. For instance, in Lund (2020), the case, titled Bostock v. Claton County, involves the Supreme Court upholding non-discrimination based on race and sex, against which an employer is liable and faces paying compensatory damages. This case implies that if the company is found liable under the interpretation of Title VII of the Civil Rights Act, it would have to pay compensatory damages to Mr. Lee. The confirmation of liability would affect other employees, especially of other nationalities, who have experienced the same and may choose to also forward their case. This liability would label the workplace as toxic, discriminatory, and lacking diversity. If the company is found liable under OSHA for failing to protect its employees from Covid-19 exposure, it could face penalties based on the type of violation, ranging between $15,625-$156,259 per violation. Dealing with litigations for OSHA non-compliance will be costly for the company. For instance, Sadeh et al. (2022) address the cost impact of Covid-19 OSHA citations and specify that fines for non-compliance and regulatory violations have a significant cost impact on a company. If the company is found liable, it means that the company would also be liable for all other Covid-19-related cases, amounting to millions of dollars of fines and compensatory damages that would be detrimental to the company’s finances. It would also mean that the work environment is unsafe, and the company cannot protect its most valuable resource, leading to a demoralized workforce. (Analyzing Liability 3)

Realistic preventative measures that could have avoided legal liability

The company has to promote diversity in the workplace by developing and enforcing anti-harassment and anti-discrimination policies that condemn discrimination based on race, color, gender, ability or disability, sexual orientation, and other identifiers. The company should protect employees from bullying and harassment. Cross-cultural or cultural sensitivity training and education would be necessary to ensure a discrimination-free environment. For example, Shepherd (2019) offers evidence supporting cross-cultural training, including diversity training, anti-racism raining, and micro-aggression training, effectiveness in enhancing cultural competence, safety, humility, and intelligence, which are integral in ensuring a workplace free from discrimination, harassment, and intimidation. The training would include all employees because there are allegations of lapse in conduct and professionalism among low-level employees and supervisors. The training program would ensure that all employees respect cultural and racial differences, act professional in conduct and speech, refuse to instigate, participate, or condone discrimination and harassment, and avoid race-based or culturally offensive acts, including humor and pranks (Shepherd, 2019). Systematic factors contribute to discrimination, harassment, and retaliation in the workplace. Therefore, the company should develop an effective internal complaints procedure and ensure such issues are addressed internally to avoid legal liability. These procedures, coupled with dispute resolution systems can help preve(Analyzing Liability 3)nt discrimination and harassment as provided by Dobbin and Kalev (2020), who offer guidelines for making discrimination and harassment systems better.

Individuals and departments that would need to be involved in the proposed measures

Mr. Lee complained of harassment on a daily basis, from a fellow security guard to the supervisor. This case implies a lack of cultural sensitivity and awareness across employees of all levels. Therefore, all employees, including supervisors and managers, will be involved in the proposed measures, particularly the cross-cultural or cultural sensitivity training and education. The Human Resources Department will be involved because it is responsible for outlining disciplinary action policies and procedures to respond to actions or behavior that violate the company’s policies. It will help formulate and enforce anti-harassment and anti-discrimination policies and formalize the internal complaints procedure to orient all employees on the code of discipline. (Analyzing Liability 3)

Viable legal defenses the company could assert in a litigation context in order to defeat the complainant’s claims

The complainant has the duty to prove that he experienced racial discrimination at the workplace, which seems a serious case because the allegations are confirmed in other complaints, implying that employees think Mr. Lee spread the virus under the company’s watch. The company would also have to prove beyond doubt that Mr. Lee did not experience racial discrimination or that if he did, it was unintentional because only intentional racial discrimination is ruled as non-compliance. The company can also counter the claim by stating a lack of substantial evidence indicating that Mr. Lee experienced racial discrimination. The company has to show current policies that protect employees from racial discrimination and how it enforced these policies to respond to the complaint. Mr. Lee is accused of spreading the virus because he is Chinese. If the company can prove that indeed Mr. Lee brought the virus to the workplace, it can avoid legal liability. In the interview transcript, interviewees provide that the company developed safety rules and measures per CDC to protect employees from Covid-19 exposure. It has to prove this claim with substantial evidence to avoid legal liability, given that other complaint letters point to the lapse of judgement and preparedness as the primary cause of over 70% of infections and several wrongful deaths. The company has to convince the jury that employees acquired the virus outside the workplace, which is beyond the control of the employer, to avoid legal liability. (Analyzing Liability 3)

Ethical implications of the scenario and measures that address ethical issues

The primary ethical principles associated with this scenario include fairness, respect, responsibility, and protection from harm. Racial discrimination and harassment in the workplace are perceived as ethical failing due to a culture or practices of disrespect, unfairness, and harm (Elias & Paradies, 2021). It is a violation of human rights due to an unjustified distinction created by the nature of the work environment or policy failures. Racial discrimination impacts negatively the work environment and the company at large. Employees who are harassed and singled out by other employees, including managers and supervisors, feel unheard and unprotected by the company. It creates a toxic environment, forming divides between employees that are detrimental to the company. Employees of other racial and ethnic minorities or nationalities would fear engaging or collaborating meaningfully when the company does not protect them from harassment and discrimination. It would mean increased absenteeism, turnover, poor performance, bad PR, loss of income and litigation, and damaged relationships with other companies that employ an anti-racist or anti-discrimination approach. (Analyzing Liability 3)

Under the ILPA Industry Code of Conduct Guidelines, all individuals should be treated equally in an organization, and a company should not tolerate discrimination based on age, gender, race, religion, sexual orientation, family status, disability, marital status, or political beliefs (Institutional Limited Partners Association, 2018). The company can enforce such measures to prevent ethical failing and unethical behavior as a measure to promote ethical conduct in the workplace. The company should condemn discrimination and racism, protect employees from bullying and harassment, and promote a diverse and inclusive environment where employees respect each other’s differences. (Analyzing Liability 3)

References

Dobbin, F., & Kalev, A. (2020). Making discrimination and harassment complaint systems better. WHAT WORKS?, 24.

Elias, A., & Paradies, Y. (2021). The Costs of Institutional Racism and its Ethical Implications for Healthcare. Journal of bioethical inquiry, 18(1), 45–58. https://doi.org/10.1007/s11673-020-10073-0

Hahn, R. A., Truman, B. I., & Williams, D. R. (2018). Civil rights as determinants of public health and racial and ethnic health equity: health care, education, employment, and housing in the United States. SSM-population health, 4, 17-24.

Institutional Limited Partners Association. (2018). Code of conduct: harassment, discrimination and workplace violence: Guidelines for the private equity ecosystem.

Lund, N. (2020). Unleashed and Unbound: Living Textualism in Bostock v. Clayton County. Clayton County (July 14, 2020). Federalist Society Review, 21, 20-15.

Michaels, D., & Wagner, G. R. (2020). Occupational Safety and Health Administration (OSHA) and worker safety during the COVID-19 pandemic. Jama, 324(14), 1389-1390.

Sadeh, H., Mirarchi, C., Shahbodaghlou, F., & Pavan, A. (2022). Predicting the trends and cost impact of COVID-19 OSHA citations on US construction contractors using machine learning and simulation. Engineering, Construction and Architectural Management, (ahead-of-print).

Shepherd, S. M. (2019). Cultural awareness workshops: limitations and practical consequences. BMC Medical Education, 19(1), 1-10.

Analyzing Liability 3