PHI 301: Engineering Ethics
Course outline
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Make-up Exam Notice:
1st Midterm
Saturday, December 14, 2013 @ 12 pm at Gulshan campus
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PHI 301: Engineering
Ethics
Lecture Sheet 15:
Employer Rights
Instructor: M.
Jamal Hossain
Employer
Rights:
You
become an employer as soon as you appoint even one employee. The
American federal employment laws have certain rights and
responsibilities that govern the way an employer-employee
relationship should function. As an employer, it is very important
that you understand your rights as well as your responsibilities
towards your employees so that you can avoid unnecessary situations
at your workplace and can also protect yourself in case one ever
arises.
Employers
need to know various rules that direct their workings with employees
and also their own rights. These can be broadly classified as:
Appointing
Employees:
When
hiring any employee, it is important that the employer does not
discriminate against any applicant based on his sex, nationality,
religion, race, etc.
The
employer does have the right to refuse someone a job if they do not
feel the person would be appropriate for the position, provided
there are no prejudices involved.
An
employer also has the right to not hire someone who is using any
drugs, but it has to be a current addiction and not any past problem
that has been overcome.
An
employer cannot refuse someone a job because they are disabled, but
if the disability interferes with job performance, then the employer
is within his rights to reject such job applications.
Salaries
and Wages:
All
employers are required to pay at least minimum wages to their
employees. But if their employees regularly receive a minimum of $30
in tips every month, then an employer can pay the worker as little
as $2.13 per hour.
Employers
are within their rights in not paying overtime to employees in an
executive or managerial level position. Such employees should have
at least one or two subordinates working under them and also the
right to hire and fire such subordinates. But if the management
position is just a fancy title and not an actual position, then the
employer has to pay overtime.
Employees
do not have to be paid for time spent in commuting to work, unless
such travel is outside the scope of the daily work commute.
Discrimination
at Work:
An
employer cannot discriminate against any person based on his
religion, sex, race, nationality, and age.
Employers
need not hire anyone who is not suitable for the job and this does
not constitute discrimination.
Employers
do not have the right to fire someone for complaining about
discrimination.
Leave
Policies:
Employers
have the right to refuse paid vacation or sick leave to employees.
But employers who do choose to give some paid time off to their
workers should ensure that all their workers get the same benefits,
otherwise it can be termed as discrimination.
Employers
need not give paid maternity leave to new mothers, but if they do,
then they have to provide the same to new fathers also. But they are
required to give unpaid parental leave of up to 12 weeks in the
first year of the newborn.
To
check that an employee does have a medical condition, employers can
ask their employees who ask for sick leave to provide a doctor’s
certificate.
Firing
Employees:
An
employer can fire an employee for any reason (provided it is not
illegal) if there is no employment contract. Where such a contract
does exist, the rules for firing are governed by the contract.
A
fired employee does not need to be given a severance package, but if
it was promised in their contract, then it has to be given.
An
employer is not required to give a positive reference to a fired
employee, but on the other hand employers cannot even unnecessarily
badmouth the employee or else they face a defamation lawsuit.
These
are the things that any employer should be aware of when employing a
worker. If under any circumstances, an employer does face any legal
charges brought forth by an employee, then they should take these
charges seriously and get a qualified lawyer to help them with their
situation.
PHI 301: Engineering Ethics
Lecture Sheet 14: Science Technology and the Future
Instructor: Md. Jamal Hossain
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BIOLOGY AND BIOTECHNOLOGY
Research
on active biomaterials for implantation in the human body could lead
to in-situ repair and regeneration of damaged tissue as an
alternative to surgery and a cure for some diseases.
Advances
in the next 3 to 10 years are expected to make DNA microarray
technology ever more widely accessible, reaching a commercial scale
that promises to speed the discovery of new biomedical applications
in the next several decades.
Mathematical
modeling and analysis of large data sets promise to enable
application of knowledge obtained from explorations of the human
genome to the prevention, diagnosis, and treatment of disease.
A
wide range of technologies, from pharmaceuticals to implantable
devices, and specialised cognitive or behavioural training (leading
to regional brain activation through functional imaging), will enable
extensions of human bodies, senses, and capabilities. This will lead
to redefinition of various boundaries: natural versus artificial,
alive versus dead, individual versus collective.
Multidisciplinary
efforts by astrobiologists are expected to increase our understanding
of the origins of life on this planet and could result in finding
biospheres beyond Earth.
Completion
of the 2010 Project to understand the function of all genes in a
model plant is expected to support the development of crops, plants
of industrial usefulness, and medicinal plants.
Nanoshells
could revolutionise oncology by enabling precisely targeted therapies
that could replace chemotherapy and radiation.
Interaction
between personal electronic products, mediated by human skin, may
lead to new, and greater use of, invasive applications.
Chemical-based
drug development is likely to be displaced by methods based on
biotechnology, promising to make possible individualized drug
formulas that are more efficacious than 'blockbuster drugs' in the
treatment of disease.
The
first practical biochemical nanocomputing devices are probably a
decade or more away, but their development is being fueled by massive
investment in research in the genomic sciences and nanotechnologies.
Drugs
for non-clinical conditions promise to be used widely by select
population segments as forms of self-medication to optimise
performance.
Biological
research is stimulating work in new realms of mathematics, and new
maths is contributing to advances in biology. Growing synergy between
the two disciplines promises to accelerate progress in both fields in
coming decades.
The
field of bioinformatics may grow over the next two decades, but not
fast enough to meet increasing demand for bioinformatics expertise
from pharmaceutical and other biochemical industries.
The
next 20 years are likely to witness a revolution in our understanding
of the human brain, with implications for virtually every domain of
human activity, from mental health to software design and academic
performance and real-life decision- making.
Advances
in technology and medicine, as well as the expiration of patents on
medicine, will open up wider opportunities in health care in
developing regions.
Two
new types of 'intelligent' polymers may be a source of design
innovation over the coming decade, especially in the biomedical
field. Mass commercial applications may follow.
In
tandem with the development of inexpensive tools to sequence the
genome of various species, the merger of evolutionary and
developmental biology will enable us to study evolutionary variation
in a methodical way, learning how organisms evolve and change their
form. Evo-devo could enable us to develop medical interventions to
prevent birth defects and heriditary diseases. Ultimately, evo-devo
could enable us to construct organisms from their component genetic
data.
Testing
of DNA with nanowire sensors is likely to replace traditional DNA
tests, making such testing less expensive, faster, and more widely
available as a diagnostic tool.
The
ability to rapidly genotype plants is expected to contribute to
improvements in human and ecoystem health in the next decade.
Promising
research is expected to lead to vastly improved detection and
treatment of cancer within the next 10 years.
The
tools of computational biology may be applied at an increasing rate
to pharmaceutical innovation in the next 20 to 50 years, resulting in
a faster, less costly, and more tailored approach to drug
development.
Stretching
the realm of possibilities, biological physicists and engineers are
treating cells as tools that can be mechanically reworked for
environmental and biomedical purposes. Expect new applications in the
next 10 to 20 years but also intense debate about unintended
consequences.
Smart
materials -- a variety of materials engineered for special qualities
and capable of interacting with the larger environment -- are likely
to proliferate in the coming decades, serving purposes from
protecting and healing us to saving energy.
Stem
cell research is likely to lead to a new kind of cell-based medicine
that regenerates the body, but practical and ethical challenges mean
safe and effective treatments may be decades away.
New
discoveries by cell biologists regarding the role of RNA in gene
regulation have provided researchers with a powerful tool that will
likely have wide-ranging impact. These discoveries have also spurred
the formation of biotechnology companies aiming to develop RNA-based
therapies.
Chemistry
The
unique properties of conductive polymers are likely to find
application in a wide variety of electronic devices within the next
couple of decades.
Two
new types of 'intelligent' polymers may be a source of design
innovation over the coming decade, especially in the biomedical
field. Mass commercial applications may follow.
Nanomanipulation
at the quantum level of chemical reactions could ameliorate chemical
pollution.
As students who
learn in ‘green’ laboratories apply their knowledge in industry,
environmentally responsible practices for the design, manufacture,
and disposal of chemicals may replace unsustainable practices.
Computer
Sciences
Developments
in display technology may increase the repertoire of interactions
between users and digital media by increasing the number of sites for
‘ambient’ displays.
As
metropolitan roadways become more congested and growth of road
capacity is curtailed by lack of suitable land and by NIMBYism,
automated highway systems may be employed to increase capacity and
safety.
A
nearly ubiquitous broadband architecture of wireless services for
users of electronic telecommunications devices promises to be
available globally by 2015.
Interested
amateurs are likely to have increased opportunities in the future to
donate resources, time, or labor in support of scientific research,
thanks largely to low-cost distributed computing.
Interaction
between personal electronic products, mediated by human skin, may
lead to new, and greater use of, invasive applications.
The
first practical biochemical nanocomputing devices are probably a
decade or more away, but their development is being fueled by massive
investment in research in the genomic sciences and nanotechnologies.
The
concept of cyberspace as a distinct geographical entity has
influenced the way we think about information technology, e-commerce,
copyright, and high-tech products. New technologies are revealing a
more complex relation between data-space and the real world, with
consequences in all these areas.
The
first physical neural interface between a computer and a human brain
(probably serving a prosthetic function) may be demonstrated by
2015–2020.
Simulations
that take advantage of vastly increased computing power could be used
more heavily in the social sciences, eventually becoming the more
dominant means of analysis as a method of predicting human behaviour.
The
field of bioinformatics may grow over the next two decades, but not
fast enough to meet increasing demand for bioinformatics expertise
from pharmaceutical and other biochemical industries.
Solution
of the seven maths problems named by the Clay Mathematics Institute
as its Millennium Prize Problems may blur the line between 'pure' and
'applied' mathematics and could also have implications for computer
and network architectures and security.
Nanoscale
physical materials that can be automatically assembled into useful
configurations by computer instructions could usher in a new era in
manufacturing.
Parallel
programming -- programming for hundreds or thousands of concurrent
independent processes or 'threads' – may become increasingly
important over the next decade as the result of developments in both
hardware and software. Programming for small scale mobile and
embedded devices may be an exception to this trend.
New
technologies for cooperation and a better understanding of
cooperative strategies may create a new capacity for rapid, ad hoc,
and distributed decision making.
The
tools of computational biology may be applied at an increasing rate
to pharmaceutical innovation in the next 20 to 50 years, resulting in
a faster, less costly, and more tailored approach to drug
development.
Working
prototypes of quantum computers may be demonstrated by 2040, making a
whole new range of computationally intensive tasks possible.
Proactive
and context-aware computer systems that anticipate users' needs and
perform tasks in a timely and context-sensitive manner may begin to
have an impact within the next 10 years.
New
applications for supercomputing may develop over the next decade as
large-scale supercomputing services become accessible over broadband
terrestrial and wireless Internet networks by 2015.
Tiny
processors and Web servers, some as small as specks of dust, with
increasing capacities for data storage, may be widely embedded in the
environment and in physical objects by 2015.
RFID
tagging systems will probably be widely used to identify and track
physical objects in a variety of industrial and consumer settings by
2015, despite concerns about potential abuse.
Nanoscale processors
are likely to be widely adopted for general computing in most parts
of the world by the middle of the century.
Nanotechnology
Developments
in nanotechnology are expected to affect almost every route by which
drugs are delivered into the human body, with improvements ranging
from incremental to revolutionary.
Carbon
nanotube composites promise to enable the creation of lighter and
stronger transportation vehicles.
Nanoshells
promise to revolutionise oncology by enabling precisely targeted
therapies that could replace chemotherapy and radiation.
The
Dream of Biochemical Nanocomputing
The first practical biochemical nanocomputing devices are
probably a decade or more away, but their development is being fueled
by massive investment in research in the genomic sciences and
nanotechnologies.
Nanoscale
physical materials that can be automatically assembled into useful
configurations by computer instructions could usher in a new era in
manufacturing.
Smaller,
cheaper, more accurate sensors engineered on the nanoscale promise to
provide unprecedented access to information about the physical world.
As
growing populations exhaust the ability of natural sources to supply
fresh water, new nanotechnologies for purification of waste streams
and desalinisation of ocean water could fill the gap.
Testing
of DNA with nanowire sensors is likely to replace traditional DNA
tests, making such testing less expensive, faster, and more widely
available as a diagnostic tool.
Nanoscale
wires under development today promise to make electronic circuits
faster, more powerful, lighter, and cooler, and provide a very
efficient method for transmitting electricity.
Smart
materials -- a variety of materials engineered for special qualities
and capable of interacting with the larger environment -- are likely
to proliferate in the coming decades, serving purposes from
protecting and helping us to saving energy.
Nanoscale processors
are likely to be widely adopted for general computing in most parts
of the world by the middle of the century.
Ecology and Earth
Science
The
ongoing process of identifying all living species and determining
their interdependencies, range, life cycle, and population size will
one day be completed, possibly in the next 50 years.
Greater
access to computing resources may allow complex ecosystem modelling
to reach a level of detail that could inform a significant
improvement in our stewardship of the planet and its resources.
Advances
in several different technologies could improve the accuracy of
forecasting of local and regional weather.
As
growing populations exhaust the ability of natural sources to supply
fresh water, new nanotechnologies for purification of waste streams
and desalinisation of ocean water could fill the gap.
Nanomanipulation
at the quantum level of chemical reactions could ameliorate chemical
pollution.
Widely
distributed sensor networks that will increase the amount and quality
of data available to modellers may open new avenues of research in
seismology.
As
technologies to mitigate the climate change that now seems inevitable
are developed, their availability will probably vary widely across
regions and nations. The developed world will likely be capable of
dealing with localized impacts in the next 50 years, while the
developing world will struggle to cope with widespread challenges.
Energy
Despite
current high oil prices and concerns about supplies beyond the 2040s,
there may be plenty of oil to meet the world’s energy needs for the
next century.
Technologies
such as coal gasification may be employed around the globe to provide
the second wave of ‘clean’ fossil fuel energy as countries turn
to their own coal deposits to meet growing energy needs.
Energy
consumption may continue to increase worldwide, with a heavy
continued reliance on fossil fuels to meet the growing need.
Biofuels
are unlikely to become more than a marginal source of energy, but
research in the area may help drive breakthroughs in other areas such
as energy storage.
A
variety of parallel advances in materials and miniaturisation may
provide more options for powering electrical equipment independently
of national grids.
Consumers
in industrialised nations may start a small but significant movement
by demanding increasing energy efficiency.
If
construction of LNG transportation infrastructure accelerates along
with demand, natural gas could, within the next 50 years, join oil as
the second essential energy commodity.
Fusion
could be the answer to the world's energy needs. ITER, a $5bn
experimental reactor will come on-line in about a decade but success
is not guaranteed.
The
moon's rich mineral deposits and other natural resources could one
day be mined to fuel space exploration throughout our solar system
and provide energy for Earth.
Despite
its potential to cut fossil-fuel dependency, global use of nuclear
power will probably experience only modest growth over the next two
decades, driven mainly by developing economies.
Although
the 'hydrogen economy' is decades away, hydrogen-based fuel cells may
be increasingly applied in niche areas.
Estimates
of how much oil the world has left vary, as do scenarios for phasing
out its use. One thing is certain: as a fossil fuel, oil is a finite
resource and its end will come, sooner or later, planned for or not.
Solar
is the wild card of all energy sources, offering the potential to
meet most of our energy needs once technological breakthroughs make
the cost competitive.
Price
spikes and geopolitical concern over secure oil supplies could
motivate increasing investment in synfuels production and building of
a synfuels oligopoly by large energy companies.
Thanks
to technological improvements, wind energy is likely to continue to
be the fastest growing major energy source over the next several
years, but it will probably not displace oil, coal, natural gas,
nuclear, or hydroelectric as a top energy producer for at least the
next 20 years.
Materials
Research
on active biomaterials for implantation in the human body could lead
to in-situ repair and regeneration of damaged tissue as an
alternative to surgery and a cure for some diseases.
Carbon
nanotube composites promise to enable the creation of lighter and
stronger transportation vehicles.
Nanoshells
promise to revolutionise oncology by enabling precisely targeted
therapies that could replace chemotherapy and radiation.
The
unique properties of conductive polymers are likely to find
application in a wide variety of electronic devices within the next
couple of decades.
Ink-jet
technology could give individuals the power to manufacture their own
products. This idea has significant implications for high-tech
customisation, developing countries' access to advanced technology,
and for global economic competitiveness.
Two
new types of 'intelligent' polymers may be a source of design
innovation over the coming decade, especially in the biomedical
field. Mass commercial applications may follow.
Nanoscale
physical materials that can be automatically assembled into useful
configurations by computer instructions could usher in a new era in
manufacturing.
Nanoscale
wires under development today promise to make electronic circuits
faster, more powerful, lighter, and cooler, and provide a very
efficient method for transmitting electricity.
Smaller,
cheaper, more accurate sensors engineered on the nanoscale promise to
provide unprecedented access to information about the physical world.
Smart
materials -- a variety of materials engineered for special qualities
and capable of interacting with the larger environment -- are likely
to proliferate in the coming decades, serving purposes from
protecting and healing us to saving energy.
Economics
As
metropolitan roadways become more congested and growth of road
capacity is curtailed by lack of suitable land and by NIMBYism,
automated highway systems may be employed to increase capacity and
safety.
The
application of artificial intelligence to commerce may make trade and
logistics more efficient.
Demographic
changes from urbanisation, dropping fertility rates, and aging of the
population may precipitate a re-examination of welfare economics.
Crisis
and pragmatism could encourage more economists to account for
ecological costs and to rethink the role of natural systems in
understanding markets and growth.
Distributed
and wireless technologies may precipitate innovative strategies for
economic growth in poor countries enabling the rapid development of
economic infrastructure.
Mobile
phones have the potential to spur economic growth, especially
entrepreneurial business, in the Developing World.
Advances
in simulation tools and behavioural analysis may facilitate
innovation in economic research methods.
New
technologies for cooperation and a better understanding of
cooperative strategies may create a new capacity for rapid, ad hoc,
and distributed decision making.
The
next wave of global trade will be driven by the off-shoring of
services and information-processing tasks that can be delivered
electronically.
A
shift in R&D processes from “ivory tower” models to global
networks of contractors and alliances could have a significant impact
on the economics of innovation.
Mathematics
Mathematical
modeling and analysis of large data sets promise to enable
application of knowledge obtained from explorations of the human
genome to the prevention, diagnosis, and treatment of disease.
Completion
of the 2010 Project to understand the function of all genes in a
model plant is expected to provide information applicable to plants
of industrial usefulness, such as crop plants and medicinal plants.
Mathematical
tools for discovering patterns in large databases, along with
stochastic modeling, could contribute to better decision making in a
range of fields.
Biological
research is stimulating work in new realms of mathematics, and new
maths is contributing to advances in biology. Growing synergy between
the two disciplines promises to accelerate progress in both fields in
coming decades.
Solution
of the seven maths problems named by the Clay Mathematics Institute
as its Millennium Prize Problems may blur the line between 'pure' and
'applied' mathematics and could also have implications for computer
and network architectures and security.
Social Sciences
The
advent of archaeology at the molecular level thanks to advancements
in genetics, chemistry, and physics is expected to lead to a new
level of precision in archeological research and enable better
understanding of past events and cultures.
As
sociologists incorporate the challenges of the 21st century into the
discipline, new areas of research such as sociology of terrorism and
sociology of war are expected to arise.
Complexity
theory promises to become the dominant tool for managing social
relations.
Social
scientists are increasingly likely to incorporate a geographical
perspective in their work as geocoded data becomes more available and
methods of spatial analysis become more sophisticated.
Mobile
phones have the potential to spur economic growth, especially
entrepreneurial business, in the Developing World.
The
rise of applied anthropology is likely to challenge the traditional
structure of the discipline.
The
rise of applied sociology is likely to challenge traditional
divisions in sociology.
Simulations
that take advantage of vastly increased computing power could be used
more heavily in the social sciences, eventually becoming the more
dominant means of analysis as a method of predicting human behaviour.
Cyber-ethnography,
defined as the study of online interaction, is likely to become an
important area of anthropological research as more and more human
activites are conducted in cyberspace.
Space Sciences
Multidisciplinary
efforts by astrobiologists are expected to increase our understanding
of the origins of life on this planet and could result in finding
biospheres beyond Earth.
The
moon's rich mineral deposits and other natural resources could one
day be mined to fuel space exploration throughout our solar system
and provide energy for Earth.
Manned
space missions may diminish in importance and number as developments
in the design and deployment of robot spacecraft make them
increasingly attractive to space agencies.
Within
Earth's orbit, manned spaceflight may be driven by space tourism and
Chinese nationalism. NASA's manned spaceflight endeavours will
probably focus on its plans for a manned mission to the moon, but
China may beat them to it.
Physics
Progress
in quantum theory may make it more understandable and useful : a
better understanding of foundational issues in physics may support
developments in nanotechnology, quantum computing, superconducting
materials and many other fields.
Experimental
physicists may finally converge on a single underlying theory that
describes all the fundamental workings of the universe, from
subatomic particles ruled by quantum mechanics to the gravitational
forces so elegantly explained by Einstein's general theory of
relativity.
Progress is likely
to be made in understanding the dominance of dark matter and dark
energy in our universe.
Psychology
Developments
in brain imaging will continue to provide new insights into
relationships between brain and mind states, states, and into
psychological processes that can be quantified objectively and used
to provide other measures of brain output besides overt behaviour and
inferences from psychology experiments.
The
next 20 years are likely to witness a revolution in our understanding
of the human brain, with implications for virtually every domain of
human activity, from mental health to software design and academic
performance and real-life decision- making.
A
wide range of technologies, from pharmaceuticals to implantable
devices, and specialised cognitive or behavioural training (leading
to regional brain activation through functional imaging), will enable
extensions of human bodies, senses, and capabilities. This will lead
to redefinition of various boundaries: natural versus artificial,
alive versus dead, individual versus collective.
Gene
expression mapping could popularize evolutionary psychology, an
approach to understanding human behaviour that combines evolutionary
biology and cognitive science.
Geographic
Science
Brazil
could emerge as one of the world's leading scientific powers by 2025,
if it pursues a policy of intelligent investment and maximises the
benefits of international collaboration.
Brazilian
technology has thus far developed a small number of world-class
centres of excellence. In the next 20 years, overall domestic
technological contributions to the national economy could expand,
given the right conditions.
While
existing science and technology centres continue to thrive, new
regional innovation clusters are likely to develop in the emerging
science powerhouses of China, India, and Brazil to maximise knowledge
networks and economies of scale.
The
20th-century phenomenon of 'brain drain', of scientific and
engineering talent emigrating from developing countries to North
America and Europe, is likely to be replaced by 'brain circulation',
in which globally mobile scientists and engineers work for shorter
periods in a wider range of countries.
The
'science city', and the underlying model of state management and
direction of science that it often implied, will probably become
obsolete in the next 20 years, displaced by the new phenomenon of the
science park.
Over
the next 50 years, the long US dominance of a wide range of fields in
science and technology is likely to end as the global scientific
playing field becomes flatter and more diverse.
China could emerge
as a scientific and technical superpower in the next 20 years if it
improves its management of intellectual property and finance, further
liberalises its markets, and relaxes political constraints.
Structure Science
Interested
amateurs are likely to have increased opportunities in the future to
donate resources, time, or labor in support of scientific research,
thanks largely to low-cost distributed computing.
The
20th-century phenomenon of 'brain drain', of scientific and
engineering talent emigrating from developing countries to North
America and Europe, is likely to be replaced by 'brain circulation',
in which globally mobile scientists and engineers work for shorter
periods in a wider range of countries.
The
'science city', and the underlying model of state management and
direction of science that it often implied, will probably become
obsolete in the next 20 years, displaced by the new phenomenon of the
science park.
Open
access promises to replace the current scientific publishing
establishment.
Smaller, lighter
instruments promise to enable field scientists to conduct research in
increasingly varied environments.
Complexity
The
application of artificial intelligence to commerce may make trade and
logistics more efficient.
Greater
access to computing resources may allow complex ecosystem modelling
to reach a level of detail that could inform a significant
improvement in our stewardship of the planet and its resources.
Complexity
theory may have a role in managing social relations.
Advances
in simulation tools and behavioural analysis may facilitate
innovation in economic research methods.
New
technologies for cooperation and a better understanding of
cooperative strategies may create a new capacity for rapid, ad hoc,
and distributed decision making.
PHI 301: Engineering Ethics
Lecture Sheet 13: The Rights
of Engineers
Instructor: M. Jamal Hossain
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The Rights of Engineers
The profession of engineering proclaims this universal declaration
of engineers’ rights as a common standard of achievement for all peoples and
nations, to the end that every individual and every entity of society, keeping
this Declaration constantly in mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by progressive measures,
corporate, national and international, to secure their universal and effective
recognition and observance, both among the peoples of every country themselves
and among the management, employers, staffs and peoples engaged by corporations
and other employers under their jurisdictions. Further, all persons, by virtue
of practicing as an engineer and exercising the duties and responsibilities which
go with such a professional position in employment, has certain rights when
engaged in an engineer employee capacity, as delineated herein:
Article 1 Human Rights -- possessed by virtue of being people or
moral agents
All engineers are entitled to all the rights and freedoms set
forth in this Declaration and the Universal Declaration of Human Rights as
enumerated by the United Nations, without distinction of any kind, such as
race, color, gender, age, language, religion, political or other opinion,
national or social origin, property, or other status.
Fundamental right to pursue legitimate personal interests and to
make a living
Article 2 Employee Rights -- rights that apply or refer to the
status of employees
a. Contractual -- arising solely out of an employee contract
To contractual and private terms of engagement
Of private practice, regardless of employment
Of total remuneration for professional services rendered
To receive a salary of a certain amount when employed
b. Noncontractual -- existing even if not formally recognized in a
contract or company policy
To choose outside activities
To privacy and employer confidentiality
To due process from employer
To freedom from surveillance, psychological manipulation, and
other job evaluation techniques
To practice regardless of health or physical fitness (where they
do not obviously impair ability to perform professional service)
To reputational fairness based upon the notion that between an
employer and each of its employees of long standing and unquestioned
competence, an implicit moral compact exists under which each party is obliged
to promote and protect the other’s major interests.
To not be arbitrarily discharged where the discharge would be
inconsistent with the public good, even if his employment contract is
terminable at will
Article 3 Professional Rights -- possessed by virtue of being
professionals having special moral responsibilities
To be free from being subjected to threats, coercion,
intimidation, harassment or other pressures which tend to influence their free
exercise of moral and ethical decision making,
Of professional conscience (the right to exercise professional
judgment in pursuing professional obligations)
To refuse to engage in unethical activity
To express one’s professional judgment, including the right to
dissent
To warn the public of dangers
To fair recognition and remuneration for professional services
To refuse unethical activity without prejudice or loss of contract
To lifetime registration, barring proven misbehavior or
incompetency
To national registration and freedom to practice
To exercise responsible professional judgment in pursuing
professional responsibilities. Pursuing those responsibilities involves
exercising both technical judgment and reasoned moral conviction.
To be an ethical engineer
To seek advice and guidance as necessary to resolve the employee's
concern or question when faced with an unethical business conduct or a legal
question
To protect the public safety, that an engineer's contract of
employment includes as a matter of law, an implied term that such engineer will
protect the public safety, and that a discharge of an engineer solely or in
substantial part because he acted to protect the public safety constitutes a
breach of such implied term
To engage in external whistle-blowing concerning safety when three
conditions are met:
1. If the harm that will be done by the product to the public is
serious and considerable;
2. If they make their concerns known to their superiors; and
3. If getting no satisfaction from their immediate superiors, they
exhaust the channels available within the corporation, including going to the
board of directors.
In order for the whistle-blowing to be morally obligatory, two
further conditions must be met:
4. He [or she] must have documented evidence that would convince a
reasonable, impartial observer that his [or her] view of the situation is
correct and the company policy wrong.
5. There must be strong evidence that making the information
public will in fact prevent the threatened serious harm.
Website: http://users.khbo.be/lodew/Universal%20Declaration%20of%20Engineers'%20Rights.htm
PHI 301: Engineering Ethics
Lecture Sheet 12: Technology
and Globalization
Instructor: M. Jamal Hossain
-------------------------------------------------------------------------------------------------------------------------------
Effects of Technological Developments
on Globalization Process
Technological
developments are conceived as the main facilitator and driving force of most of
the globalization processes. Before elaborating on the consequences of several
technological developments, we must go through the definition of technology as
a sociological term, so that we can further explore the social and political
role of technology in the globalization process.
Technology
can be defined as the socialized knowledge of producing goods and services. We
can describe the term technology with five important elements: production,
knowledge, instruments, possession and change. Our definition of technology as
a socialized knowledge can be better conceived with these elements. Now we
shall briefly look through them:
It
has something to do with production (of goods and services). We need
technology to produce something either goods (ex: clothes, television set, cars
etc.) or service (ex: banking, security, teaching etc.) Technology improves our
capacity to produce.
Technology
has something to do with knowledge. Technology is a result of
intellectual activities. Therefore technology is type of intellectual
property. Today technology is developed through research and development
institutions as integral parts of the universities.
Technology
has something to do with instruments. The instruments are the extensions
of the human body, whenever an instrument is used there is technology involved.
The instruments indicate the usage of technology by human beings. Instruments
are mostly physical such as computers, vacuum cleaners or pencils, but
sometimes there are immaterial instruments too, such as databases or algorithms
in computer programming.
Technology
has something to do with possession. Those people who possess technology
also control it. Controlling technology has usually something to do with
economics and politics. Therefore we can speak of technologically rich and poor
countries and the struggle among them usually in the forms of patents,
transfers and protection of intellectual rights.
Technology
has something to do with change. With technology, the world has changed
drastically. Most of the innovations from the technological advances have very
important effects on the lives of peoples of the world, which has witnessed
radical changes especially after 1960’s revolutions on the microelectronics
technologies. Even there are some people who argue that the history is made by
technology as a result of their highly criticized techno-determinist view.
All
these aspects of technology justify our definition of technology as the
socialized knowledge of producing goods and services, and this definition makes
a clear differentiation between the terms technology and technique (technics).
Therefore if we speak about the effects of technology on globalization, instead
of techniques or technical developments we refer to technology as a social and
political term.
One
may argue that the commercial activities on the Mediterranean in the Ancient
times were to be labeled as globalization. The world of these ages, although
smaller in size than that of today, had witnessed a simpler form of
globalization, after the technological developments on navigation and
transportation. The invention of the script can be considered as the
first technology of communication that contributed to globalization. With the
script man could transmit and store information that could speed up further
technological developments. Transportation and communication in these ages were
in parallel to each other and there were couriers, people who specifically
carried and delivered mail and other written materials by running or riding
horse. However this limited amount of information transmitted, received and
stored was not sufficient for a large-scale state. Later, due to further
developments in transportation and communication it was possible to control
larger areas; and the emergence of larger empires such as Byzantine Empire had
provided greater globalizations.
Invention of the print machine with moving letters by Gutenberg
was the most important revolutionary technological development, which made
possible even a larger global geography. The emergence of the newspapers
marked an important era of globalization when the news both commercial and
political became an indispensable element for the decision makers. Another
milestone in the history of globalization is the invention of telegraph
by Samuel Morse. Telegraph made it possible to communicate with the places
where you don’t have to go and separated the practices of communication from
those of transportation. This aspect of telegraph soon drew the attention of
military ranks and telegraph became both a civilian and military communication
technology. However because the poles and the copper wires needed for a
telegraph and telephone system it was not possible to set up a properly
functioning network in insecure and instable geographies. Cyrus Field’s
attempts to lay a transatlantic cable for telegraphy succeeded in 1858 and this
marked the beginning of a global network. Telephone of Graham Bell in
1861 also contributed to communication networks. Railways also networked to
reach to larger distances. Invention of radio as a wireless communication
technology solved this problem and opened a new era of globalization. With radio
it became possible to communicate with places where you cannot go and even with
places where no one can travel. Hertz, Maxwell, Marconi, Tesla and several
other people contributed to the invention of radio, which soon became a
military communication tool especially for the navy. Radio of 1920’s however,
turned to be a commercial communication technology; and is used as a mass
communication technology. Transportation technologies also improved with the
start of the 20th Century when transatlantic ships became safer and
faster and airplanes were produced. First propeller driven passenger plane
began service in 1919 between London and Paris. Jet plane and television
of 1950’s were also important steps toward greater globalizations. The first
reliable transatlantic telephone cable TAT-1 was laid in 1956. 1957 marked the
most important step in the history of globalization when USSR launched its Sputnik
as the first man-made satellite. Satellites made it possible to built a
fully reliable global network, compensating the radio networks’ ionosphere
fading problem. However global networks still required stronger global networks
with solid connections. The first transatlantic fiber cable TAT-8 was
laid in 1988 for faster and reliable networks.
Global
networks:
Digital
technologies have opened the way towards global networks. Global networks are
the networks in which all information and knowledge – also the ideology-
necessary for the realization, maintenance and the reproduction of the system –
basically the capitalist system. The term “New Economy” is the clearest
explanation of how all these information, knowledge and ideology are in close
relation to capitalism.
Monopolization
of economic power –or rather the emergence of an oligopoly markets- is also
related to the technology, which facilitates the monopoly tendencies in many
ways. Electronic banking is at the heart of the global networks system. Electronic
Fund Transfer (EFT), is the first operating form of global
electronic financial networks. With EFT it is possible to send and receive
financial assets among banks. The Society
for Worldwide Interbank Financial Telecommunication
(SWIFT) is the organization to assure a reliable global electronic financial
system.
In
1973 in Brussels, supported by 239 banks in 15 countries, SWIFT starts the
mission of creating a shared worldwide data processing and communications link
and a common language for international financial transactions. In 1977,
Albert, Prince of Belgium, sends the first SWIFT message. By this time the
initial group of members has grown to 518 commercial banks in 17 countries. By
the end of that year SWIFT achieved 518 customers - 22 countries - 3,400,000
messages. In 1985 a satellite link between US and Europe established. With the
utilization of sattelite technology SWIFT has developed rapidly and this
technologically well functioning electronic financial network has been accepted
globally. By the end of 1999 SWIFT had 6,797 live users in 189 countries and
reached 1,059,000,000 messages.
With
the introduction of VSAT (Very Small Aperture Terminal) technology utilizing
the satellites, it has been possible to establish communication networks for
TNCs themselves. These networks have been re-structured later with the
introduction of IP based intranet technologies. Today it is easily possible to
establish a perfectly functioning intranet of a TNC with branches over distant
parts of the globe.
The
satellites today lie at the heart of the global networks. The foundation of
INTELSAT in 1964, as an international organization for satellite utilization,
was an important step towards the handling of several techno-political issues
such as scarce resource satellite positions on Clark belt, an imaginary line
35780 km. Above the equator. The foundation of INTERSPUTNIK in 1971 by the
Soviet allies, also improved the communication capabilities of many non-Western
countries. The foundation of EUTELSAT in 1974 was another response by the
European countries in the “space race”. Today Turkey has three satellites
positioned at 42 degrees East and 31.3 degrees East.
Internet
and especially e-commerce are the terms that are basically used for justifying
the recent approach of techno-globalism. Techno-globalism can be summarized as
the ideology which rationalizes globalism on technological grounds.
The
techno-globalists, most of them live in the Anglo-Saxon countries claim that
technology makes globalism irresistible. Therefore, techno-globalists wishing
to dismantle all worldwide barriers to economic or technology flows, suggest a
“liberal” global economic system on technologically improved infrastructure.
Lecture sheet 11: Job Discrimination
Job Discrimination
is done under some mechanisms. They are:
Minorities or ethnicities
Gender Discrimination
Racial Discrimination
Low wages and sexual harassment
Civil
Rights and Civil Liberties
Civil
Rights and Civil Liberties, political and social
concepts referring to guarantees of freedom, justice, and equality
that a state may make to its citizens. Although the terms have no
precise meaning in law and are sometimes used interchangeably,
distinctions may be made. Civil
rights
is used to imply that the state has a positive role in ensuring all
citizens equal protection under law and equal opportunity to exercise
the privileges of citizenship and otherwise to participate fully in
national life, regardless of race, religion, sex, or other
characteristics unrelated to the worth of the individual. Civil
liberties
is used to refer to guarantees of freedom of speech, press, or
religion; to due process of law; and to other limitations on the
power of the state to restrain or dictate the actions of individuals.
The two concepts of equality and liberty are overlapping and
interacting; equality implies the ordering of liberty within society
so that the freedom of one person does not infringe on the rights of
others, just as liberty implies the right to act in ways permitted to
others.
The concept that human
beings have inalienable rights and liberties that cannot justly be
violated by others or by the state is linked to the history of
democracy. It was first expressed by the philosophers of ancient
Greece. Socrates, for example, chose to die rather than renounce the
right to speak his mind in the search for wisdom. Somewhat later the
Stoic philosophers formulated explicitly the doctrine of the rights
of the individual (see
Stoicism).
Traces of libertarian doctrine appear in the Bible and in the
writings of the Roman statesman Marcus Cicero and the Greek essayist
Plutarch. Such ideas, however, did not gain a permanent place in the
political structure of the Roman Empire and all but disappeared
during medieval times.
Individual freedom can
survive only under a system of law by which both the sovereign and
the governed are bound. Such a system of fundamental laws, whether
written or embodied in tradition, is known as a constitution. The
idea of government limited by law received effective expression for
the first time in the Magna Carta (1215), which checked the power of
the English king. The Magna Carta did not stem from democratic or
egalitarian beliefs; rather, it was a treaty between king and
nobility that defined their relationship and laid the basis for the
concept that the ruler was subject to the law rather than above it.
The development of constitutional government was slowed by the
persistence of the ideas of absolutism,
the belief that all political power should be in the hands of one
individual, and divine
right,
which held that kings derived their power from—and were accountable
only to—God. These beliefs were widely held throughout Europe until
the 18th century. The notion that the people have the right to be
asked to consent to acts of government did not arrive without a
protracted struggle. The reigns of the Tudor and Stuart monarchs in
England were marked by fierce conflicts between the Crown and
Parliament.
On the European continent
the struggle between authoritarian and libertarian principles
developed around religious rather than secular issues. During the
Reformation, freedom of religious belief and practice was a primary
concern. Tolerance was rare; as late as 1612, for instance, members
of the Unitarian sect were burned as heretics in England (see
Unitarianism).
Not until the end of the 18th century did the ideals of religious
toleration become firmly established in Western civilization.
As a result of the English,
American, and French revolutions, libertarian ideals were embodied in
the structure of national governments. In England, the struggle
between Parliament and the absolutist Stuart monarchs culminated in
the so-called Glorious Revolution of 1688. King James II was
expelled, and the new king, William III, gave royal assent (1689) to
the Declaration of Rights (English Bill of Rights), which guaranteed
constitutional government. Subsequently, the monarch’s prerogatives
were limited by statute and custom. The idea of a constitutional
system is described in the writings of the English philosopher John
Locke, which profoundly influenced the leaders of the American
colonies.
The 17th century was marked
also by the growth of individual freedom in Great Britain. In the
common law courts, for example, the judges became more concerned for
the rights of those accused of crime, and procedural safeguards were
established.
B
|
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Spread
of Civil Liberties
|
British colonists brought
the concepts of limited government and individual freedom to the New
World. The early laws of Virginia, Massachusetts, and other colonies
reflected interest in the reform of criminal procedure that was
emerging in Great Britain. A notable event in the history of civil
liberties was the successful defense (1735) in New York by the
Philadelphia lawyer Andrew Hamilton of the printer John Peter Zenger,
who had been charged with seditious libel for criticisms of the
colonial government in his publication the New
York Weekly Journal.
Hamilton established the principle that the government may not punish
truthful publications of matters of public concern. See
The
Trial of John Peter Zenger.
The events leading to
the American and French revolutions inspired writings that laid the
foundations for modern ideas of civil liberties by such authors as
the French philosophers Voltaire and Jean Jacques Rousseau, the
British reformer John Wilkes and the philosopher Jeremy Bentham, the
Anglo-American writer Thomas Paine, and the American statesmen Thomas
Jefferson and James Madison. The Declaration of the Rights of Man and
of the Citizen in France and the Bill of Rights of the Constitution
of the United States formally established libertarian principles as a
foundation of modern democracy.
Although civil liberties
are often considered an integral part of democratic government, the
principles of limited government and personal freedom were developed
in England at a time when political power was held by an aristocratic
upper class. Similarly, in the American colonies, many founding
fathers did not favor democracy in the modern sense. Indeed, the
framers of the U.S. Constitution provided a method of electing the
nation’s president that avoids a direct popular vote. Conversely,
history offers numerous examples of countries in which political
power is formally vested in representative assemblies, but
enforcement of law is arbitrary or despotic, and minorities have few
safeguards against the tyranny of majorities.
III
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CIVIL
RIGHTS AND CIVIL LIBERTIES IN THE UNITED STATES
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A
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Religious
Freedom
|
|
Although religious freedom
has not generally been curtailed in the United States, Roman
Catholics, Jews, and members of such unconventional Protestant groups
as the Oneida Community and the Church of Jesus Christ of Latter-day
Saints have historically been discriminated against and sometimes
have even been persecuted, although today overt discrimination has
almost vanished.
The federal Civil Rights
Act of 1964, as well as many state and local laws, prohibits
religious discrimination. The government recognizes the right of
religious pacifists to refuse to bear arms, even in time of war. The
Supreme Court has ruled that this right, known as conscientious
objection, need not be based only on religious training or belief in
a supreme being. The Court has also upheld the right of Jehovah’s
Witnesses to refuse to salute the flag because of religious
objections.
Applying the principle
of separation of church and state (see
Church
and State), the Court has struck down many attempts to use public
funds to finance religious schools; at times, however, the Court has
permitted the use of public funds for buildings and other
nonsectarian programs of religious schools. In the 1960s the Court
ruled that state-composed prayers and Bible reading in public schools
violated the Constitution, a policy to which the Court has adhered.
In 2000, for example, it struck down school-sponsored prayers at
public high school football games. Efforts to reverse these rulings
were unsuccessful, but in recent years the Court has been more
permissive in allowing government aid to religion. For example, in
certain cases it has upheld a community’s right to place religious
displays on public property, and in 2002 it upheld a school voucher
program in which public funds were largely to pay for education at
religious private schools. At the same time, however, the Court has
refused to require the government to carve out religious exemptions
from generally applicable laws.
B
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Freedom
of Speech, Press, and Assembly
|
Civil liberties have been
most endangered during periods of national emergency. In 1798
hostility toward revolutionary France led Congress to enact the Alien
and Sedition Acts, which stripped aliens of nearly all civil rights
and threatened freedom of speech and the press by prohibiting “false,
scandalous and malicious writing” against the government, Congress,
or the president. The constitutionality of these acts was never
tested, but they soon expired, were not reenacted, and are now
generally agreed to have been unconstitutional.
During the American Civil
War, President Abraham Lincoln gave his principal military officers
wide and unreviewed authority to arrest civilians for disloyal speech
or acts. After World War I, fear of the newly established Communist
government in the Soviet Union led to the harassment of suspected
subversives by the U.S. Department of Justice.
The rise of National Socialism
in Germany, the spread of communism, and the Great Depression of the
1930s all combined to arouse concern for the internal security of the
United States. The federal legislative and executive power to deal
with disloyal acts was enlarged. In 1940 Congress passed the Smith
Act, which outlawed the advocacy of force and violence as a means of
bringing about changes in government. In 1950 Congress adopted the
Internal Security Act, which established a new federal agency for
identifying and suppressing so-called subversive persons and
organizations. Congress virtually outlawed the Communist Party in
1954, although membership in the party was not expressly made
criminal. These statutes were upheld by the Supreme Court, but
eventually were limited in scope and fell into disuse during the
1960s. In 1969 the Court adopted a constitutional standard that
protects political speech unless “directed to inciting … imminent
lawless action” and was likely to produce such action.
In the 1950s congressional
and state investigating committees conducted widely publicized
hearings at which thousands of individuals were questioned concerning
their political activities and associations, if any, with the
Communist Party. Among the legislators prominently identified with
these investigations were Senators Patrick McCarran of Nevada and
Joseph McCarthy of Wisconsin. The Supreme Court subsequently limited
such proceedings.
New problems emerged during
the 1960s and 1970s. Demonstrations by opponents of racial
discrimination and the Vietnam War, and government attempts to
restrict these demonstrations, led the Supreme Court to specify
where, when, and how cities and states may limit the use of streets,
parks, and other public places for purposes of protest. At the same
time, certain symbolic forms of expression were employed by the
protesters, leading to court rulings upholding criminal punishment
for the burning of draft cards but reversing convictions for the
mutilation of the American flag as a form of expression. The Court
held in 1989 and 1990 that neither the federal government nor the
states could single out the burning of the American flag for criminal
penalties.
The attempted publication
in 1971 by the New
York Times
and the Washington
Post
of the so-called Pentagon Papers led to a major Supreme Court
decision that prior restraints on publication of national security
material could not be enjoined unless such material “will surely
result in direct, immediate and irreparable damage to our nation or
its people.” See
Censorship.
In 1964 the Supreme Court
ruled for the first time that, to give the press breathing room, even
false statements about public officials are protected by the First
Amendment unless uttered with “actual malice”; that is, with
knowledge of their falsehood or with reckless disregard of the facts.
Later cases refined this decision but left to the discretion of the
states whether to allow defamation actions brought by persons who are
neither public officials nor public figures.
The Supreme Court also
elaborated its 1957 ruling that obscenity is not constitutionally
protected speech. Determining the content of obscenity has been
difficult; in 1973 it was defined as speech that, taken as a whole,
appeals to the prurient interest, is patently offensive in depicting
sexual conduct, and lacks serious literary, political, or scientific
value. This vague definition has led to numerous lawsuits involving
explicit sexual material. Conservative religious groups and some
feminists have attempted to restrict the distribution of sexually
explicit material that is not obscene. The movement achieved limited
success, but civil libertarians have led efforts to combat this form
of censorship. In 1997 the Court struck down a federal law that
banned nonobscene but sexually explicit material on the Internet. The
Court reasoned that Congress may not prohibit circulation to adults
of constitutionally protected speech simply because children might
see it.
One of the most controversial
First Amendment cases of the late 1970s did not reach the Supreme
Court. When a U.S. Nazi group sought to march in Skokie, Illinois,
the home of many Jewish survivors of German concentration camps,
emotions were aroused, and the city enacted laws designed to prevent
the march. Both federal and state courts upheld the right of this
Nazi group, which was represented by the American Civil Liberties
Union, to express itself peaceably.
The Court has broadened
constitutional protection for many other forms of speech, including
commercial speech. In the 1990s, it struck down several attempts to
ban advertising, including liquor advertising, said to be harmful.
C
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Criminal
Trials and Due Process of Law
|
Thousands of Supreme Court
rulings have been concerned with the rights of persons accused of
crimes. Defendants in state as well as federal criminal cases are
assured that they cannot be imprisoned for an offense unless
represented by a lawyer, or counsel; if a defendant is impoverished,
such counsel must be supplied by the government. Defendants must be
warned that they may not be questioned until counsel is provided, and
defendants may not be convicted on the basis of confessions obtained
by coercion. The Court also ruled that prosecutors may not exclude
people from juries on grounds of race or sex.
The Fifth Amendment privilege
against self-incrimination was the most controversial constitutional
protection during the 1950s and 1960s, when it was invoked by, among
others, individuals accused of subversive activities and
participation in organized crime. The Court’s interpretation of the
Fourth Amendment has also generated controversy; its provisions
protecting the security of the person and of dwellings have been
cited in disallowing convictions based on evidence obtained by the
police illegally. The Court in the 1970s began to narrow its
interpretation, a process that has continued into the 21st century as
the public has come to favor crime-control measures over the rights
of defendants. This climate of opinion has also led to more frequent
use of capital punishment, although the Court has limited the crimes
for which death may be the punishment. The Court has also prescribed
procedures that must be followed before the death penalty may be
given. At the same time, it has limited the right of prisoners to
appeal their convictions on constitutional grounds.
Following the September
11, 2001, terrorist attacks on the World Trade Center and the
Pentagon by international terrorists, President George W. Bush
invoked his constitutional authority as commander-in-chief and signed
a military order allowing the government to detain and conduct secret
trials of noncitizens suspected of terrorism. The U.S. military
proceeded to detain as “enemy combatants” hundreds of foreign
nationals who were captured during hostilities in Afghanistan and
elsewhere. The government held them indefinitely at the U.S. naval
base at Guantánamo Bay, Cuba, without bringing criminal charges or
allowing them legal counsel. The military also detained two American
citizens as enemy combatants.
In 2004 the Supreme Court
considered the constitutionality of indefinite detentions of enemy
combatants. In the case Hamdi
v. Rumsfeld,
the Court upheld the authority of the president of the United States
to classify U.S. citizens as enemy combatants and to detain them
without charges. However, the Court ruled that such detainees are
entitled to challenge the government’s case against them before an
impartial judge. In addition, detainees have the right to an
attorney. In Rasul
v. Bush,
the Court ruled that foreign detainees held at Guantánamo Bay have
the right to challenge their detention in U.S. courts.
The issue of indefinite
detention, however, was raised anew by the passage of the
Intelligence Reform and Terrorism Prevention Act in late 2004. The
American Civil Liberties Union (ACLU) objected to one provision in
the new law that calls for automatic pretrial detention for terrorist
suspects. The ACLU warned that the provision would increase the
possibility of indefinite detention, noting that most of those held
at Guantánamo Bay were still in custody nearly four years after
their initial arrest.
A constitutional right
of privacy, drawn from the Bill of Rights provisions protecting the
security of home and person, as well as freedom of association, was
first recognized by the Supreme Court in 1965. In Griswold
v. Connecticut
the Court struck down a state law that prohibited the use of
contraceptives by a married couple. The decision was later extended
to protect the rights of single persons and, in the Roe
v.
Wade
decision of 1973, the right of women to abort an unwanted pregnancy.
In 1980, however, the Court refused to apply this ruling to require
the federal government to bear the cost of abortions for women who
could not afford them. Efforts to reverse Roe
v. Wade
judicially or by constitutional amendment were unsuccessful. A
divided Supreme Court in 1992 reaffirmed the core holding of Roe
while further limiting its scope.
Other test cases of rights
of privacy during this period concerned wiretapping and eavesdropping
on private conversations, widespread dissemination of personal
information through computers, access to information in government
files, and the use without consent of pictures and names of
celebrities. Although the courts have given some protection to
privacy, the limitations have been relatively minor. For example, the
Supreme Court ruled in 2000 that Congress could prohibit states from
selling personal information on state drivers’ licenses and
motor-vehicle registration records. Additional protection has
resulted from legislative enactments such as the federal Privacy Act
of 1974 and various state statutes.
The Patriot Act, antiterrorism
legislation passed in the aftermath of the September 11 attacks,
significantly expanded the federal government’s surveillance
powers. Federal agents were given greater authority to wiretap
telephones, to monitor e-mail and Internet use, and to secretly
search a suspect’s home or office. These powers were further
widened by the Intelligence Reform and Terrorism Prevention Act of
2004, which authorized the sharing of personal information from
public and private databases. Civil liberties advocates warned that
this provision had the potential to lead to unchecked data
surveillance, but supporters of the law said adequate safeguards were
in place to protect privacy.
Civil liberties advocates
were again concerned when it was revealed in December 2005 that
President George W. Bush had signed a presidential order in 2002
authorizing the National Security Agency to eavesdrop without
judicial warrants on the overseas electronic communications of U.S.
citizens and foreign nationals in the United States. Many legal
experts believed the order violated the 1978 Foreign Intelligence
Surveillance Act (FISA), which set up a special court to hear
government requests for domestic wiretaps of U.S. citizens or foreign
nationals in investigations involving espionage. Although the Patriot
Act further amended FISA by lowering the standard for court-approved
eavesdropping to include possible terrorists linked to foreign
intelligence services, it still required approval by the FISA special
court for wiretapping. FISA was enacted in response to abuses by the
Federal Bureau of Investigation and the Central Intelligence Agency,
which were found to have wiretapped individuals and organizations
engaged in civil rights and anti-Vietnam War protests and other First
Amendment-protected activities during the 1960s and 1970s. To prevent
abuses, FISA prohibited any electronic surveillance not authorized by
the special court.
In hearings before the
U.S. Congress, Attorney General Alberto Gonzales aggressively
countered the claim that the NSA wiretapping was illegal, citing
Bush’s authority as commander in chief. Gonzales said the program’s
legality was also established by a congressional resolution, the 2001
Authorization for Use of Military Force, that authorized the
president to use “all necessary and appropriate force” to prevent
future acts of terrorism. Many members of Congress, however, said the
resolution had nothing to do with warrantless electronic
surveillance. The conflict raised serious questions not only about
privacy but also about the limits of presidential power and the
system of checks and balances during wartime.
E1
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|
Civil
Rights for Blacks
|
The most critical civil
rights issue in the United States has concerned the status of its
black minority. After the Civil War the former slaves’ status as
free people entitled to the rights of citizenship was established by
the 13th and 14th Amendments, ratified in 1865 and 1868,
respectively. The 15th Amendment, ratified in 1870, prohibited race,
color, or previous condition of servitude as grounds for denying or
abridging the rights of citizens to vote. In addition to these
constitutional provisions, Congress enacted several statutes defining
civil rights more particularly. The Supreme Court, however, held
several of these unconstitutional, including an 1875 act prohibiting
racial discrimination by innkeepers, public transportation providers,
and places of amusement.
During the period of Reconstruction
the Republican-dominated federal government maintained troops in the
southern states. Blacks voted and held political offices, including
seats in Congress. Two blacks became senators, and 20 were elected to
the House of Representatives during this era. The Reconstruction era
aroused the bitter opposition of most southern whites. The period
came to an end in 1877, when a political compromise between the
Republican Party and southern leaders of the Democratic Party led to
the withdrawal of federal troops from the South.
In the last two decades
of the 19th century, blacks in the South were disfranchised and
stripped of other rights through discriminatory legislation and
unlawful violence. Separate facilities for whites and blacks became a
basic rule in southern society. In Plessy
v. Ferguson,
an 1896 case involving the segregation of railroad passengers, the
Supreme Court held that “separate but equal” public facilities
did not violate the Constitution and refused to acknowledge that the
separate facilities in use were not in fact equal.
During the first half
of the 20th century, racial exclusion, either overt or covert, was
practiced in most areas of American life. During World War II
(1939-1945) black leaders such as A. Philip Randolph protested
segregation in military service, and some reforms were introduced. In
1948 President Harry S. Truman signed an executive order integrating
the armed forces. The 1954 Supreme Court decision in Brown
v.
Board of Education
represented a turning point; reversing the 1896 “separate but
equal” ruling, the Court held that compulsory segregation in public
schools denied black children equal protection under the law. It
later directed, ineffectually, that desegregated educational
facilities be furnished “with all deliberate speed.” Subsequent
decisions outlawed racial exclusion or discrimination in all
government facilities. The Court also upheld federal laws barring
discrimination in interstate commerce, such as public transportation.
A state law against racial intermarriage was also ruled invalid (see
Miscegenation).
School desegregation was
resisted in the South. Federal determination to enforce the court
decision was demonstrated in Little Rock, Arkansas, in 1957, when
President Dwight Eisenhower dispatched troops to secure admission of
black students into a “white” high school. Nevertheless, in the
Deep South progress toward integration was negligible in the years
following the Supreme Court decision. In 1966, for example, the
overwhelming majority of southern schools remained segregated. By
1974, however, some 44 percent of black students in the South
attended integrated schools, and by the early 1980s the number was
approximately 80 percent.
In the North and West
many black students also attended segregated schools. Such
segregation was considered unconstitutional only where it could be
proven to have originated in unlawful state action. Public
controversy, sometimes violent, continued over the issue of
transporting children in school buses long distances from their homes
in order to achieve integration. Busing had become necessary because
of the concentration of minority populations in the central areas of
many cities. The Supreme Court dealt a blow to such busing in July
1974 by, in effect, barring it across school-district lines except on
a voluntary basis.
Civil rights for blacks
became a major national political issue in the 1950s. The first
federal civil rights law since the Reconstruction period was enacted
in 1957. It called for the establishment of a U.S. Commission on
Civil Rights and authorized the U.S. attorney general to enforce
voting rights. In 1960 this legislation was strengthened, and in 1964
a more sweeping civil rights bill outlawed racial discrimination in
public accommodations and by employers, unions, and voting
registrars. Deciding that normal judicial procedures were too slow in
assuring minority registration and voting, Congress passed a voting
rights bill in 1965. The law suspended (and amendments later banned)
use of literacy or other voter-qualification tests that had sometimes
served to keep blacks off voting lists, authorized appointment of
federal voting examiners in areas not meeting certain
voter-participation requirements, and provided for federal court
suits to bar discriminatory poll taxes, which were ended by a Supreme
Court decision and the 24th Amendment (ratified in 1964). In the
aftermath of the assassination of the civil rights leader Martin
Luther King, Jr., Congress in 1968 prohibited racial discrimination
in federally financed housing, but later efforts to strengthen the
law failed.
An important constitutional
issue that has caused public controversy is whether, and to what
degree, public and private institutions may use affirmative action to
help members of minority groups obtain better employment or
schooling. In the Regents
of the University of California
v. Bakke
case in 1978, the Supreme Court held that it was unconstitutional for
the University of California Medical School at Davis to set an
absolute quota for the admission of minority candidates, but said
that race can be taken into account for the setting of numerical
goals that were not disguised quotas. The Court later ruled that
racial preferences by a private corporation designed to remedy prior
discrimination did not violate the Civil Rights Act.
A changing political climate
in the 1980s and 1990s, however, led to the repeal of many
affirmative action programs. In 1995 the Court said that all public
affirmative action plans must be strictly scrutinized. The Court
hinted strongly that only those plans designed to remedy past acts of
discrimination would survive. Furthermore, many lower courts began to
openly reject the finding in the Bakke
case that colleges and universities were permitted to seek racial
diversity among their student bodies by giving special consideration
to minority applicants.
Nevertheless, in the first
major decision on affirmative action since the Bakke
case in 1978, the Supreme Court in 2003 reaffirmed racial diversity
as a goal of college and university admissions programs. The case
involved the University of Michigan Law School’s admission program,
which considered race, among other qualities, in evaluating each
applicant. In a 5 to 4 decision the Supreme Court upheld the law
school’s affirmative action program, finding that there was a
“compelling public interest” in achieving diversity as long as
quotas were not used. The decision in Grutter
v. Bollinger
came despite briefs filed against affirmative action by the
administration of President George W. Bush. The decision did not
rescind state laws that forbid affirmative action programs, such as
those passed by popular initiative in California and Washington.
Civil rights organizations hailed the ruling as a historic victory.
Opponents of the decision took note of the Court’s opinion that
affirmative action should only be necessary for another 25 years.
Historically, American
women have been denied their civil rights in suffrage (they were
unable to vote until a 1920 constitutional amendment), employment,
and other areas. In the 1960s women organized to demand legal
equality with men and, after passage of the Civil Rights Act of 1964,
made many gains, especially in employment. During the 1970s efforts
continued to change not only unfair practices but also outmoded
attitudes toward the role of women in society. In 1972 Congress
passed the Equal Rights Amendment (ERA) to the Constitution and
submitted it to the states for ratification. The ERA, however, which
was designed to eliminate legal discrimination against women, failed
to win the approval of a sufficient number of states; by the June
1982 deadline only 35 of the required 38 states had ratified the
amendment. Although the ERA failed, beginning in the 1970s the
Supreme Court ruled that laws treating men and women differently were
constitutionally suspect. In the landmark case United
States
v. Virginia
in 1996, the Court said that sex discrimination is unconstitutional
unless the state can advance an “exceedingly persuasive
justification.”
Women have continued to
make gains in certain trades and professions, including financial
services, medicine, and law, but problems remain in many areas. The
Civil Rights Act of 1991 extended to women victims of job bias the
right to sue their employers for monetary damages. The act also
established a commission to probe the “glass ceiling” that has
prevented women and other minorities from advancing to top
management. See
Women’s
Rights.
G
|
|
Rights
of Other Minorities
|
The struggle for civil
rights has not been confined to blacks, Hispanic Americans, Asian
Americans, and women. Native Americans for decades were forcibly
deprived of their lands and denied civil rights. In 1968 Congress
enacted the Indian Civil Rights Act, and the federal courts have
heard a number of suits designed to restore to Native American tribes
rights to their ancestral lands.
The elderly have also
been deprived of their civil rights, especially in employment and to
some degree in housing. Federal and state laws have been only
partially successful in solving this problem. Former prisoners and
mental patients have suffered legal disabilities after their
confinement ended, and resident aliens are sometimes denied equal
employment opportunities.
Homosexuals, historically,
have not had full civil rights because of social and sexual taboos.
The number of judicial decisions and laws enacted at the local level
to protect gay men and women from discrimination has increased, but
the degree of prejudice was heightened in the 1980s by the concern
about Acquired Immune Deficiency Syndrome (AIDS). In 1986 the Supreme
Court ruled that the Constitution does not bar criminal prosecution
for private homosexual relations between consenting adults. Several
local governments acted to curtail the rights of lesbians and gay
men. By the early 1990s the gay community had organized more
effectively than ever before in the effort to assert their rights. In
1996 the Supreme Court ruled that state and local governments cannot
make it more difficult for homosexuals than other groups to seek
protection through antidiscrimination legislation. And in 2003, in a
landmark decision, the Supreme Court overturned its 1986 ruling and
nullified laws in 13 states that criminalized gay sexual practices.
The Court asserted that gays are “entitled to respect for their
private lives” and that “the state cannot demean their existence
or control their destiny by making their private sexual conduct a
crime.”
iv
|
|
INTERNATIONAL
CONCERNS
|
To establish the principles
of civil liberties and civil rights on an international basis, the
United Nations Charter was drawn up after World War II (1939-1945);
it states that one of the purposes of the UN is to promote and
encourage respect for “human rights and for fundamental freedoms
for all without distinction as to race, sex, language or religion.”
In 1946 a UN Commission on Human Rights was established. In 1948 the
General Assembly adopted a Universal Declaration of Human Rights
prepared by the commission and embodying the 18th-century ideals of
liberty, equality, and fraternity. This declaration, however, is not
binding on member states.
Almost all nations deny
civil rights to disfavored minorities within their borders. A major
obstacle to international protection of human rights is the
opposition of most countries to interference with their internal
affairs, including questions of the rights of their own citizens. To
some degree this difficulty has been overcome through regional
arrangements and implementing bodies such as the European Commission
on Human Rights and the Inter-American Commission on Human Rights.
The administration of
President Jimmy Carter in the late 1970s introduced human rights as
an element of foreign policy. This initiative was unevenly pressed
and sometimes ineffectual, but it increased international awareness
of the gravity of the problem of securing human rights for all
people. The administration of President Ronald Reagan took a less
aggressive stance on human rights violations, claiming that quiet
diplomacy was more effective than public threats. During the
administrations of Presidents George H. W. Bush and Bill Clinton,
human rights issues became increasingly intertwined with
international trade and commercial treaties. Controversy surrounded
the granting of most-favored-nation status to countries alleged to
have violated human rights, such as China. Most-favored-nation status
guarantees that a country will receive the same terms offered to
other trade partners in commercial treaties.
International revulsion
at atrocities committed in several countries during the 1990s,
including Rwanda and the former Yugoslavia, led to the establishment
of international tribunals to try the most brutal war crimes. A
permanent body, the International Criminal Court, began operation in
2002 to try individuals accused of war crimes, genocide, crimes
against humanity, and crimes of aggression. Proponents said the
existence of the court would help deter future human rights abuses.
The United States does not participate in the International Criminal
Court and does not recognize its authority.
Sexual
Harassment
Sexual
Harassment, a form of unlawful sex
discrimination. Under federal law in the United States, sexual
educational setting under certain conditions. Such behavior is
illegal if it creates an environment that is harassment is unwanted
verbal or physical behavior of a sexual nature that occurs in the
workplace or in an hostile or intimidating, if it interferes with a
person’s work or school performance, or if acceptance of the
harasser’s behavior is made a condition of employment or academic
achievement. A number of other countries—including Japan, Canada,
Australia, and several European nations—also have laws that
prohibit sexual harassment.
Perceptions differ about
what behaviors constitute sexual harassment. However, typical
examples of sexual harassment include sexually oriented gestures,
jokes, or remarks that are unwelcome; repeated and unwanted sexual
advances; touching or other unwelcome bodily contact; and physical
intimidation. Sexual harassment can occur when one person has power
over another and uses it to coerce the person to accept unwanted
sexual attention. If a supervisor forces an employee to have sex by
threatening to fire the employee, that is sexual harassment. It can
also occur among peers—for example, if coworkers repeatedly tell
sexual jokes, post pornographic photos, or make unwelcome sexual
innuendos to another coworker. Both men and women can be harassers or
victims of sexual harassment. However, research indicates that women
are more likely to be victims.
The Congress of the United
States first prohibited discrimination based on an individual’s sex
when it passed the Civil Rights Act of 1964. However, it was not
until the mid-1970s that U.S. courts began to interpret sexual
harassment as a form of illegal sex discrimination. Since that time
complaints of sexual harassment have become much more common. In
several high-profile cases, prominent public officials have been
accused of sexual harassment. These cases have increased public
awareness of the issue and sparked debate concerning what types of
behavior should be considered inappropriate or unlawful.
Many different studies
have attempted to investigate the frequency and prevalence of sexual
harassment. Surveys provide widely divergent statistics, indicating
that anywhere from 30 to 70 percent of women have experienced some
form of sexual harassment at some point in their lives. This wide
range may be due in part to the fact that perceptions of what
constitutes sexual harassment differ among individuals and among men
and women. That is, what some people might consider acceptable
behavior, others might think of as sexual harassment.
Another way of gauging
the prevalence of sexual harassment is to examine formal complaints
to government agencies. From 1990 to 1996 the number of complaints of
sexual harassment in the workplace filed with the U.S. Equal
Employment Opportunity Commission (EEOC) more than doubled—from
about 6000 to about 15,000. The number of men filing sexual
harassment claims with the EEOC increased from 8 percent of all
claims in 1990 to 10 percent of the total in 1996. Complaints of
sexual harassment occurring at schools and colleges have also become
more numerous.
Research indicates that
sexual harassment is widespread among children and teenagers. One
survey of more than 1500 students in nearly 80 junior high and high
schools found that 85 percent of girls and 76 percent of boys had
experienced some form of sexual harassment at school. The researchers
in this study defined sexual harassment as unwanted and unwelcome
sexual behavior that interferes with a student’s life. In most
categories, girls experienced higher rates of sexual harassment than
did boys. Seventy-six percent of girls and 56 percent of boys
reported being the target of sexual comments, jokes, gestures, or
looks. This was the most common form of sexual harassment in the
schools surveyed. Sixty-five percent of girls and 42 percent of boys
reported that they had been touched, grabbed, or pinched in a sexual
manner. Forty-two percent of girls and 34 percent of boys reported
that they had been the subject of sexual rumors. However, more boys
than girls (34 percent versus 31 percent) reported that others had
shown, given, or left them sexual pictures, photographs, or messages.
Surveys about sexual harassment
have a number of research limitations. Victims may be more likely
than nonvictims to respond to a survey about sexual harassment.
Alternatively, some victims may fail to report harassment because
they are ashamed. Therefore, self-report surveys of victims or
offenders may result in either overreporting or underreporting of
harassment. Bearing in mind the limitations of the research, most
experts agree that sexual harassment is widespread.
Sexual harassment often
has adverse effects on the victim’s performance at work or school.
Both the quantity and the quality of work may suffer, as well as the
employee’s or student’s morale, attendance, and ability to work
with others. Sexual harassment can cause employers losses in
productivity and can lead to greater employee turnover and use of
sick leave. The harassment can also harm the victim’s psychological
and physical well-being. One study found 96 percent of sexual
harassment victims suffer from emotional distress, and 35 percent
experience physical, stress-related problems. Typical symptoms
include anger, fear, anxiety, lowered self-esteem, depression, guilt,
humiliation, embarrassment, nausea, fatigue, headaches, and weight
gain or loss.
Sexual harassment can
also have indirect effects on society. Many feminist scholars
consider sexual harassment to be a form of oppression that men use to
maintain male-dominated power structures. These scholars note that
sexual harassment in school limits girls’ participation and impairs
their academic achievement. Similarly, women in fields of work that
men have traditionally occupied—such as the military, law
enforcement, and fire fighting—experience higher rates of sexual
harassment. Some researchers assert that regardless of whether
harassment is an intentional attempt to oppress girls and women, it
contributes to lower achievement by women in society.
IV
|
|
LAWS
AGAINST SEXUAL HARASSMENT
|
In the United States,
two major federal laws prohibit sexual harassment in employment and
educational settings: Title VII of the Civil Rights Act of 1964 and
Title IX of the Education Act of 1972. These laws authorize federal
agencies to investigate complaints of sexual harassment. They also
permit victims to file lawsuits against employers or schools seeking
to end the harassment and to obtain monetary compensation for the
harm resulting from it. Many states have also adopted laws
prohibiting sexual harassment.
Title VII prohibits sex
discrimination by an employer with respect to compensation, terms,
conditions, or privileges of employment. The EEOC, which enforces
Title VII, has issued guidelines that help define what constitutes
unlawful sexual harassment. According to these guidelines, unwelcome
sexual advances, requests for sexual favors, and verbal or physical
sexual conduct constitute unlawful sexual harassment under any of
three conditions: (1) submission to the conduct is either implicitly
or explicitly made a term or condition of employment; (2) submission
to or rejection of such conduct is used as a basis for employment
decisions; or (3) the conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working environment.
The key element that makes the sexual behavior unlawful in each case
is that it is unwanted by the recipient. For example, sexual jokes
and flirting may be acceptable in the workplace under some
circumstances; however, if these behaviors are unwelcome, they may
constitute sexual harassment.
A person who believes
he or she has experienced sexual harassment on the job has a limited
period of time in which to file a complaint with the EEOC. After the
EEOC investigates the matter, it issues a right
to sue letter,
regardless of its conclusions about the matter. The victim then has
90 days to file a lawsuit against the employer in federal court. If
he or she is successful in the lawsuit, the victim can receive up to
$300,000 in compensatory damages for each incident of unlawful
harassment, as well as back pay, attorneys’ fees, and possibly
additional money damages under state or local law. If the victim was
fired or did not receive a promotion as a result of the harassment,
the court may order reinstatement or promotion. The court may also
order the harasser to discontinue the unlawful conduct.
Title IX prohibits sex
discrimination, including sexual harassment, in all federally funded
educational institutions. The federal agency responsible for
enforcing Title IX, the Office of Civil Rights of the Department of
Education, has issued guidelines that help define the scope of that
law with respect to sexual harassment. The guidelines discuss two
types of sexual harassment. The first type involves a coercive
tradeoff—for example, a threat by a professor to give a student a
poor grade unless the student has sex with the professor. This type
of harassment is known as quid
pro quo,
a Latin phrase meaning “this for that.” The second type of sexual
harassment discussed by the guidelines involves unwanted sexual
behavior that creates a hostile or intimidating environment.
A victim of sexual harassment
in school can file a lawsuit against the school in federal court for
monetary damages under Title IX. The victim need not complain to the
Office of Civil Rights first. Educational institutions in violation
of Title IX may also lose federal funding.
The Supreme Court of the
United States began hearing sexual harassment cases in the mid-1980s.
Its first rulings described what behaviors constitute unlawful sexual
harassment under the federal laws prohibiting sex discrimination.
More recently, the Court has considered who is legally responsible
when a victim proves that sexual harassment occurred.
A
|
|
Defining
Sexual Harassment
|
In 1986 in the case of
Meritor
Savings Bank v.
Vinson,
the
Supreme Court first recognized as unlawful both types of sexual
harassment defined by the EEOC guidelines—that is, harassment
involving a coercive tradeoff and harassment that creates a hostile
or intimidating environment. The Court unanimously concluded that
both types of sexual harassment were actionable under Title
VII—meaning victims of such harassment could sue their employer for
monetary damages.
In the Meritor case, a
female employee alleged that the bank’s male vice president invited
her to dinner and, afterward, suggested going to a motel to have sex.
She testified that although she initially refused to go to the motel,
she later agreed for fear of losing her job. The employee also
alleged that the vice president repeatedly made sexual demands of her
during business and nonbusiness hours, and that during the next few
years they had sex approximately 40 to 50 times. The trial court had
concluded that because the sexual relationship between the employee
and her supervisor was voluntary, the sexual conduct was unrelated to
the employee’s continued employment, and therefore the employee was
not a victim of sexual harassment. The Supreme Court ruled that the
employee might be able to show that the supervisor’s actions had
illegally affected her employment conditions by creating a hostile
and intimidating environment.
Whereas the trial court
in the Meritor
case focused on whether the employee suffered any tangible economic
loss, the Supreme Court relied on the language of the EEOC guidelines
regarding a hostile work environment. The Court compared sexual
harassment to racial discrimination, stating: “Sexual harassment
which creates a hostile or offensive environment for members of one
sex is every bit the arbitrary barrier to sexual equality at the
workplace that racial harassment is to racial equality.” The Court
cautioned that to constitute harassment, the behaviors must be
sufficiently severe and pervasive so as to “alter the conditions of
[the victim’s] employment and create an abusive working
environment.” It indicated that employees may sue for sexual
harassment even if they did not resist the harassment or suffered no
loss of tangible benefits. According to the Court, to determine
whether unlawful sexual harassment has occurred, trial courts should
assess whether the victim indicated that the sexual advances were
unwelcome, and not whether the victim’s participation was
voluntary.
In 1993 the Supreme Court
again addressed a case in which an employee claimed that her
supervisor had sexually harassed her by creating a hostile working
environment. In Harris
v.
Forklift
Systems, a
female employee alleged that her male supervisor, in front of fellow
employees, insulted her because she was a woman, made unwelcome
sexual innuendoes, and asked her and other female employees to remove
coins from his front pants pocket. The trial court concluded that
although some of the supervisor’s comments offended the employee
and would offend a reasonable woman, they were not severe enough to
affect the employee’s psychological well-being, to interfere with
her work performance, or to create an abusive or intimidating work
environment. The trial court therefore dismissed the case.
The Supreme Court reversed
the trial court’s decision and held that conduct need not
“seriously affect an employee’s psychological well-being or cause
the employee to suffer injury” in order to be actionable under
Title VII. So long as a reasonable person could perceive the
environment to be hostile or abusive, and the victim actually
perceives it as such, it need not also be psychologically damaging.
The Court acknowledged that the law did not provide a precise test
for determining whether behavior constituted sexual harassment. The
Court indicated that judges or juries should determine whether an
environment is hostile by looking at all of the circumstances, based
on a number of factors. These factors include the frequency and
severity of the harassing conduct; whether it is physically
threatening or humiliating; and whether it interferes with an
employee’s work performance. According to the Court, the proper
standard for determining sexual harassment is a middle path between
conduct that is merely offensive and conduct that causes a tangible
psychological injury.
In 1998 the Supreme Court,
in Oncale
v.
Sundowner Offshore Services,
ruled that unlawful sexual harassment could occur between members of
the same sex. The Court did not examine the specifics of the
employee’s complaint on appeal because the trial court had ruled
summarily (without any trial to examine the facts) that the employee
had no basis for a lawsuit under Title VII. Instead, the Court simply
determined that the trial court erred in automatically dismissing the
case. The Court’s decision also reiterated the standard expressed
in the Harris
case,
which requires courts to assess alleged harassment from the
perspective of a reasonable person considering all the circumstances.
B
|
|
Responsibility
for Sexual Harassment
|
The Supreme Court has
decided several cases regarding when employers and educational
institutions are legally responsible (liable) for sexual harassment
by employees. An employer or educational institution that is deemed
liable must pay monetary damages to the victim of sexual harassment.
In its 1986 decision in
Meritor
Savings Bank
v. Vinson,
the Court refused to issue a definitive rule on employer liability
under Title VII. However, the Court noted that the general principles
of agency should govern responsibility for sexual harassment. Under
these principles, employers can be liable for certain wrongdoings by
their supervisory employees (agents) because of the legal
relationship between the two parties. For example, employers are
liable for harm caused by their supervisory employees if the
employee's role as a supervisor helped him or her carry out the
harmful actions. Applying these principles, lower courts have
generally found employers liable for sexual harassment when managers
took tangible, job-related action—such as unwarranted termination
or demotion—against employees who refused their sexual advances.
In 1998 the Supreme Court
issued a pair of decisions that clarified employer liability when
supervisory employees sexually harass subordinates by creating a
hostile work environment but do not take specific job-related actions
against the victims. In Burlington
Industries, Inc.
v. Ellerth
and Faragher
v. City
of Boca Raton,
the Court ruled that employers are potentially liable for sexual
harassment by supervisory employees even if the victim did not
experience 'tangible retaliation' or was not denied tangible job
benefits. In the Ellerth case a female salesperson alleged that she
had been continually harassed by a male supervisor. Ellerth testified
that the supervisor touched her inappropriately and indicated that he
could make her life 'very hard or very easy' at the company depending
on whether she 'loosened up' sexually. However, she did not suffer
any tangible job detriment (other than the hostile working
environment) when she did not accept his advances. In Faragher,
a female lifeguard claimed that she was subjected to ongoing and
pervasive crude remarks and unwanted touching. However, she also
testified that her male supervisors made no specific sexual demands.
In deciding that employers
may still be liable for such harassment, the Court reasoned that an
employee's supervisory status may help him or her to sexually harass
a subordinate, even if the supervisor does not use his or her
authority to take specific retaliatory actions against a victim.
However, the Court also stated that employers may defend against such
liability by showing that they 'exercised reasonable care to prevent
and correct promptly' any improper behavior. The Court indicated that
an employer's failure to adopt an antiharassment policy and
effectively communicate it to employees may demonstrate a lack of
reasonable care. To avoid liability, employers must also demonstrate
that the victim 'unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer.' For
example, a victim's failure to formally report the harassment to
company officials could be considered unreasonable in some cases.
However, the Court noted that a victim's failure to report harassment
might be reasonable if the employer's policy did not guarantee that
the victim could register a complaint without the harassing
supervisor's knowledge.
The Supreme Court has
not addressed employer liability for sexual harassment among
coworkers. Federal guidelines indicate that employers would be
responsible for such sexual harassment if the employer knew or should
have known of the conduct, unless the employer can show that it took
immediate corrective action.
In a third 1998 decision,
Gebser
v. Lago
Vista Independent School District,
the Court narrowly defined the liability of school districts for
sexual harassment of students by teachers. The Court rejected the
plaintiff's argument that the liability of school districts under
Title IX should be the same as employer liability under Title VII. In
other words, the plaintiff asserted that if the authority of the
teacher helped him or her to sexually harass a student, the school
district should be liable. Instead, the Court ruled that a student
who is sexually harassed by a teacher may only recover damages from a
school district if an official with authority over the teacher knew
about the misconduct and was “deliberately indifferent' to it.
In 1999 the Court ruled
that institutions covered by Title IX may also be financially liable
for sexual harassment of students by other students, sometimes
referred to as peer harassment. In Davis
v. Monroe
County Board of Education,
the Court ruled that victims of peer harassment are entitled to
monetary damages from the school only if a school official was aware
of the misconduct and, showing deliberate indifference, failed to
take proper remedial action. The Court also indicated that in order
to receive damages, the victim must demonstrate that the harassment
was “so severe, pervasive, and objectively offensive' that it
effectively denied the victim access to educational opportunities or
benefits provided by the school.
VI
|
|
FREEDOM-OF-SPEECH
ISSUES
|
In an attempt to eliminate
sexual harassment and avoid financial liability, many employers have
developed company policies expressly prohibiting sexual harassment
and providing reporting procedures for victims. Often these policies
regulate speech in an attempt to prevent verbal harassment. Many
schools have adopted similar policies, and some colleges have enacted
so-called hate speech codes, which prohibit the use of certain
language, such as racist and sexist comments. These policies and
codes may conflict with freedom of speech, a right guaranteed by the
First Amendment to the Constitution of the United States.
The U.S. Supreme Court
has not yet directly addressed the potential conflict between the
First Amendment and policies designed to prevent sexual harassment.
However, one ruling by the Supreme Court indicates some restriction
of speech to prevent sexual harassment may be permissible. In R.A.V.
v.
City of St. Paul
(1992) the Court invalidated a city ordinance prohibiting hate speech
based on race and gender. Although the focus of the R.A.V.
case was racially motivated speech and not sexual harassment, the
Court suggested in passing that policies designed to prevent sexual
harassment could be lawful if the policies are primarily directed at
conduct rather than speech.
In Robinson v. Jacksonville
Shipyards (1991),
a lower federal court examined the potential conflict between
constitutionally protected freedom of speech and prohibited sexual
harassment. In the Robinson
case, female employees alleged that male coworkers created a hostile
and intimidating environment by posting in the workplace numerous
pictures of nude women and making sexually derogatory comments. The
employees accused of harassment countered that they were exercising
their right of free speech. Finding in favor of the female employees,
the court concluded that the governmental interest in eliminating
discrimination outweighed the harassers’ alleged free speech
rights. Because each allegation of sexual harassment is assessed
based on the specific circumstances of the case, other courts have
concluded that no harassment takes place when employees read
pornographic magazines or tell jokes involving sexual innuendo.
VII
|
|
ATTITUDES
TOWARD SEXUAL HARASSMENT
|
Prior to the mid-1970s
courts in the United States responded to allegations of sexual
harassment by concluding that it was a “private matter.” This
approach paralleled the early judicial response to racial
discrimination in society. It was not until women gained legal
protection of their civil rights, joined the workforce in greater
numbers, and attained positions of authority that attitudes toward
sexual harassment shifted. Eventually, the courts began to recognize
sexual harassment as unlawful discrimination and to provide legal
remedies. Throughout the 1980s increased numbers of employees—the
majority of whom were women—filed lawsuits alleging employers
should be held responsible for sexual harassment engaged in by their
employees.
During the 1990s several
high-profile incidents focused public attention on the legal and
social issues surrounding sexual harassment. For example, in 1991
U.S. Supreme Court nominee Clarence Thomas was accused of sexual
harassment by Anita Hill, then a law school professor. During the
confirmation proceedings, Hill alleged that Thomas engaged in sexual
misconduct while she had worked for him at two federal agencies in
the 1980s. Thomas denied the allegations, and the U.S. Senate
ultimately confirmed his nomination by a vote of 52-48. However, the
nationally televised hearings brought unprecedented attention to the
issue of sexual harassment. In addition, the incident spawned public
debate concerning the treatment of those who allege sexual harassment
and the safeguards for those accused of committing it.
Also in 1991, several
female officers in the United States Navy announced that they had
been sexually harassed during the Tailhook Convention, an annual
convention of navy aviators. More than 25 women, nearly half of whom
were officers, alleged that drunken male pilots grabbed them, bit
them, and tried to remove their clothes as the pilots pushed them
down a hotel hallway. As a result of these accusations, information
surfaced about other sexual misconduct at prior conventions and
throughout the Navy. Furthermore, the episode increased public
awareness of sexual harassment in all branches of the military.
Despite official proclamations of “zero tolerance” for sexual
harassment following the Tailhook incident, in 1995 the U.S.
Department of Defense released a study indicating that 52 percent of
women and 9 percent of men in the military had experienced what they
considered to be sexual harassment.
Accusations of sexual
harassment occurred at the highest levels of political power in the
1990s. Beginning in 1992 several dozen women accused U.S. Senator
Robert Packwood of making unwelcome and aggressive sexual advances.
He resigned in 1995 after the Senate Ethics Committee voted to expel
him on charges of sexual misconduct. In 1994 Paula Jones, a former
employee of the State of Arkansas, filed a civil lawsuit alleging
that she was sexually harassed by U.S. President Bill Clinton while
he served as governor of Arkansas. In 1998 a judge dismissed the suit
after determining that even if Jones’s allegations were proven, she
could not demonstrate that she had been harmed by the behavior. Jones
appealed the dismissal but later agreed to a financial settlement
from Clinton and dropped the case.
