subject: The AFFIRMATIVE DEFENSE: Something for Everybody by:Bill [print this page] THE AFFIRMATIVE DEFENSE: THE AFFIRMATIVE DEFENSE:
SOMETHING FOR EVERYBODY
Some might consider the Affirmative Defense to be a Dual Edged Sword. It is sharp--well focused and can hurt you really badly, if you are either unaware of the Affirmative Defense--or ignore it.
Let's shed some light on the duality of the Affirmative Defense by phrasing what students sometimes call the "Multiple Guess" question.
First The CASE:
An Employee charges management and the Corporation (or Educational Institution, or Government Agency) with Race Discrimination. You are to assume that this is a viable, valid and extremely damaging case.
Your task is to determine what parties are liable for payment of damages in this case. You are to choose the best two answers once you have chosen your role:
Roles: (Circle one role)
Employer
Employee
Consider your ROLE and Choose two from the following four selections in answering WHO you wish to be liable for payment of substantial damages.
1. The First Line Manager, Upper Management and the Corporation
2. Upper level Management
3. The First Line Manager
4. Neither the Corporation nor management
Indeed it is within the scope of the Affirmative Defense to allow ALL
of the above answers depending on the Role Chosen.
>From the Employer perspective: If the employer has "Walked the Walk" and "Talked the Talk" on Discrimination Law, then the employer may very well be in position to sell the court on the idea that they deserve to be awarded The Affirmative Defense.
Corporations, Educational Institutions, Government bodies, Churches, etc. who are not up to date on their Discrimination Policies, programs and trainingneed not apply!!
All types of Discrimination are included:
Race
National Origins
Age
Religion
Disabilities
Harassment
Sexual Harassment
From the Employee perspective--you must have followed all internal recommendations and procedures, basically having made a good faith effort to handle the issue within the employment venue. Having done that, you can proceed with your case with the ultimate viability of your case hinging upon whether or not the Employer can claim The Affirmative Defense. If the court awards The Affirmative Defense, you still have a case, but your ability to collect the big $$$$ has been greatly compromised.
So it behooves everybody to know and understand what is and what is not discrimination. And if discrimination is present, then The Affirmative Defense or lack there of will have great impact on WHO gets to pay the damages, and just how lucrative the damages may be.
I think it is safe to say, that all organizations would love to request the court's awarding The Affirmative Defense. My research has shown that many, if not most organizations would not have a substantial enough and comprehensive enough program in place to be able to convince the court of their worthiness of being awarded The Affirmative Defense. The worst-case scenario might be having an employee that understands Discrimination Law and The Affirmative Defense better than the management of the organization. Such an employee knows what steps need to be taken to strengthen their case while the Organization works its way out of qualifying for The Affirmative Defense.
Mr. Barger became interested in the study of Sexual Harassment during his current employment. Thus he undertook a course of study, ending with a Master of Art's degree in Management with a major in Human Resources. During his course of study he researched and reported on Sexual Harassment and has taught Sexual Harassment to Business and Ethics courses. His web site: http://www.sexualharassmentrecources.com seeks to be your total resource for information on harassment and sexual harassment, and provides general information applicable to other areas of Discrimination Law as well.
