Online learners' personal experiences explored

Computers in Human Behavior 51 (2015) 539–545
Contents lists available at ScienceDirect
Computers in Human Behavior
j o u r n a l h o m e p a g e : w w w . e l s e v i e r . c o m / l o c
a t e / c o m p h u m b e h
The personal experience of online learning: An interpretative
phenomenological analysis
http://dx.doi.org/10.1016/j.chb.2015.05.015
0747-5632/� 2015 Elsevier Ltd. All rights reserved.
⇑ Corresponding author. Tel.: +30 210 8991312 (home),
mobile: +30 6938281602.
E-mail addresses: [email protected] (R. Symeonides),
[email protected]
(C. Childs).
Roberta Symeonides a,⇑ , Carrie Childs b
a Samou 1a Street, Dilofou, Vari, Athens 166-72, Greece
b College of Life and Natural Sciences, University of Derby,
UK
a r t i c l e i n f o
Article history:
Available online 19 June 2015
Keywords:
Online learning
Personal experience
Interpretative phenomenological analysis
(IPA)
a b s t r a c t

Student interaction is critical to online social cohesion and
collaborative learning. However, online learn-
ers need to adjust to the computer mediated communication
(CMC) medium of the online environment.
This study explores online learners’ experiences of
asynchronous text-based CMC using an interpretative
phenomenological analysis of interviews with six online
students. The analysis revealed that the
constraints of written communication and lack of human
interaction causes difficulties in adjusting
and coping with the online learning environment. Four major
themes were identified: the inability to
express one’s self fully; difficulties establishing relationships;
comparing one’s self to others and the
written word as an ineffective learning medium. The study’s
findings highlight a need for better student
and tutor collaboration to facilitate a safe and interactive
environment. Effective academic and social
support can enhance online learning, improve student
satisfaction and encourage students to persist with
their learning.
� 2015 Elsevier Ltd. All rights reserved.
1. Introduction
Advances in communication technology have led to a surge in
the number of individuals taking online courses. With the
flexibil-
ity of online courses comes a greater responsibility for learners
to
be self-directed. Online learning, where computer technology
com-
munication (CMC) is used as the primary learning medium,
differs
to face-to-face learning environments in some fundamental

ways.
For students the experience of learning online, within an
unfamil-
iar environment, demands personal adaptability and coping
skills.
Many students may enroll in online courses without any
guidance
and may learn just enough about the online environment to com-
plete the course-learning the new skills required is not an easy
task
(McGilvray, 2014).
Tutor moderated asynchronous discussion, which typically
takes place via discussion board forums, is a main feature of
online
learning. Learners ‘sign on’ at times of their choosing using the
computer as a ‘meeting place’. However, life in such a ‘written
world’ gives rise to many unfamiliar problems. Written
communi-
cation violates many deeply ingrained assumptions about
commu-
nication, creating difficulties in establishing one’s own identity
(Feenberg, 1989). Void of elements of speech such as intonation
and non-verbal cues makes conveying how we feel and who we
are problematic (Pennebaker, Mehl, & Niederhoffer, 2003). The
issue of online student identity is not well recognized in the
peda-
gogical literature, which until recently has focused mainly on
aspects of instructional design (e.g. Sims, 2014), learning
outcomes
(e.g. Keramati, Afshari-Mofrad, & Kamrani, 2011) and student
sat-
isfaction (e.g. Kuo, Walker, Schroder, & Belland, 2014).
However as
Oztok, Lee, and Brett (2012) note, identities play an important
role

in online learning practices and a more refined understanding of
identity is needed to address the relationship between the
concept
of identity and learning.
There has been an increasing trend for research to focus on the
role of student interaction in relation to collaborative learning
to
establish a ‘community of inquiry’ for constructing, sharing and
understanding of knowledge ((Betts, 2009; Rouke, Anderson,
Garrison, & Archer, 2001; Shea et al., 2014). The need to
provide
shared learning spaces and tools for collaboration is well docu-
mented (e.g. Häkkinen & Hämäläinen, 2012). This body of work
is underpinned by constructivist learning theory, which under-
stands knowledge as constructed by learners through social
inter-
action with others. As Shea (2006) notes, within online learning
there has been a philosophical shift from objectivism to
construc-
tivism and a pedagogical shift from direct instruction to the
facili-
tation of collaborative learning (Jones & Brader-Araije, 2002).
It has
been suggested that the online environment is an effective plat-
form for promoting constructivist learning as it meets needs for
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540 R. Symeonides, C. Childs / Computers in Human Behavior
51 (2015) 539–545
students to access academic coursework at any time while
enhancing communication skills (Schell & Janicki, 2013).
However constructivism’s focus on group activities that
facilitate
collaborative learning via peer–peer interactions may present
challenges for the online learning environment (Huang, 2002).
Effective student interaction is critical to constructivist learning
success as ‘‘effective and lasting learning takes place for the
individual when engaged in social activity with a range of
others’’
(Pritchard & Woollard, 2010, p. 7).
Discussion forums aim to cultivate a social environment for stu-
dent interaction, collaboration and exchange of ideas,
establishing
a ‘community of enquiry’ fostering a sense of belonging to
reduce
feelings of alienation associated with online learning (Rovai &
Wighting, 2005; Song, Singleton, Hill, & Koh, 2004).
Participation
in discussion forums serves a dual purpose – to enhance
learning
and provide support (Davies & Graff, 2005). Frequent student
inter-
action has been associated with increased satisfaction (Gilbert,
Morton, & Rowley, 2007; Perez-Prado & Thirunarayanan,
2002).
However, frequency of interaction as an outcome measure pro-
vides little insight into the experience of interacting and the
importance of this for learning experience. As Gilbert et al. note
in-depth qualitative interviews may provide richer insights
‘‘and
answers to ‘why’ and ‘how’ questions’’ (p. 571). There has also

been
criticism of over reliance on the instructional design,
technological
and cognitive aspects of learning with little attention to
emotional
aspects (MacFadden, 2007; Montero & Suhonen, 2014;
Zembylas,
2008). If approaches do not provide any details of the particular
nuances of any one individual’s experience little is known about
the role of students’ feelings, thoughts and experience in the
pro-
cess of their interaction and learning. Failing to explore these
‘‘can only offer an incomplete view of the learning experience’’
(Montero & Suhonen, 2014, p. 165). A philosophical shift to
focus
on students as experts of their own experience is necessary. A
phe-
nomenological approach can illuminate this process to gain a
dee-
per understanding of human interactions (Hignett & Wilson,
2004)
and users’ needs (Bogner, 1998) in order to understand how
indi-
vidual learners experience their learning.
2. Methodology
2.1. Data collection
The dataset comprises semi-structured interviews with six
mature online students. Participants were aged between 29 and
52 years of age at different stages of their Master’s degree pro -
gramme. A request for participants was emailed to all students
on the same programme and participation was voluntary.
Purposive homogenous sampling was employed to obtain a
closely
defined group for whom the experiential research question is

sig-
nificant. The interviews were conducted using Skype™ online
tele-
phony. Interviews lasted approximately 60 min. All names are
pseudonyms.
2.2. Analysis
Interpretative phenomenological analysis (IPA) provides a
means of explicating how participants make sense of their
personal
and social world and the meanings that particular events and
expe-
riences hold for them (Smith & Osborne, 2008). Its
philosophical
underpinnings are within phenomenology, symbolic interaction-
ism, hermeneutics and idiography (Smith, Flowers, & Larkin,
2009). Developing from the work of Husserl, phenomenological
psychology rejects the notion that one can construct an
objective
‘truth’ about an experience; rather the focus is an individual’s
per-
sonal perception or account. One cannot construct an objective
third person account as there is something indispensable in
first-person experience – ‘‘what it is like’’ for the individual to
have
such an experience (Summa & Giuffrida, 2013). As such, there
is no
attempt to construct an objective truth about an experience,
rather
individuals’ experiences, understandings, perceptions and
accounts are honoured (Reid, Flowers, & Larkin, 2005). As IPA
is
concerned with the subjective account and meaning of an
experi-
ence (Brocki & Wearden, 2006) this allows one to appreciate
the

perceptions and understandings of a particular group, rather
than
prematurely make more general claims (Smith & Osborne, 2008)
which may lead to false assumptions and misunderstandings.
Although IPA is an idiographic mode of inquiry the importance
of
theory is recognized. It is useful to judge IPA in terms of
vertical,
rather than horizontal generalizability. While horizontal
generaliz-
ability aims to demonstrate that findings are applicable across
set-
tings, vertical generalizability is concerned with building
interpretative theory. Findings should be judged in terms of
their
ability to enhance understanding and insight, to contribute to
existing theory and to generate new hypotheses and research
questions (Johnson, 1997).
The analytic process was as follows: (a) interview transcripts
were read and reread a number of times to establish a general
feel-
ing of participants’ accounts; (b) exploratory comments were
made
and emergent themes were identified and organized; (c)
attention
was focused on the themes to define them in detail and establish
inter-relationships and (d) the themes were organized to make
consistent and meaningful statements of the meaning and
essence
of the participants’ experience grounded in their own words
(Smith et al., 2009).
3. Results
The overarching theme was difficulties experienced in relation

to written communication within the online learning
environment.
Participants struggled as they felt written communication was
‘not
real’ and ‘unnatural’ and often felt vulnerable when ‘talking’
publically on discussion forums. The analysis shows some of
their attempts to adjust to the online environment, but
uncertainty
and ambiguity pervades. Four major themes were identified: (1)
the inability to express one’s self fully; (2) difficulties in
establishing relationships; (3) comparing one’s self to others
and
(4) the written word as an ineffective learning medium. Each
theme is intrinsically interwoven and pivotal to written
communi-
cation. These themes are presented below, with illustrative
extracts.
3.1. Inability to express yourself fully – ‘it’s not necessarily me
at all’
The first theme encapsulates participants’ sense of loss of
human interaction. The online environment, void of human
senses
meant that participants felt that interaction was dehumanized,
unnatural and ‘not real’. As participants struggled to adjust,
feel-
ings of frustration and uncertainty prevented them interacting in
a way they were accustomed to. This meant they were often
reluc-
tant to communicate. Their accounts reveal their attempts to
cope
with these difficulties and strategies to overcome them.
‘all you have now is the way they write in the forum and the
picture. So you may well have seen, if you’ve checked my intro-

ductory post on the forum, you’ll have seen my picture and
you’ll have also have read the post and I think that comes
across
as rather hard, as a bit stiff – it’s not necessarily me at all, but
that’s the way the picture looks and I tend to write a little
directly I don’t – so again does that actually represent the
way the people are?’
[Paul]
R. Symeonides, C. Childs / Computers in Human Behavior 51
(2015) 539–545 541
Paul, a novice online learner was shocked and disorientated as
he felt robbed of the important aspects of face-to-face
communica-
tion. His sense of bewilderment and frustration are apparent as
he
struggles to portray his own identity and understand others’. As
he
struggles to overcome his difficulties his sense of loss and
hope-
lessness prevail as he is unable to recognize himself as ‘me’ and
establish himself as a member of the student group.
‘em it’s not human, not as human Yep? Because you’re missing
out that face-to-face communication. I think with being face to
face you’ve got the advantage of, you kind of, there’s more –
when
you’re face to face because you’re face to face there’s more
inter-
action. It’s like a natural interaction and its there in abundance,
whereas online you’ve got to force yourself to interact yeah?
[John]

Other participants who were more experienced with the online
communication also struggled to communicate effectively.
John’s
notion of face-to-face communication as natural and effortless
contrasts with the unnatural and stark online environment where
he has to ‘force’ himself to interact.
‘I pick up on people’s actual thoughts better when you get body
language rather than in a text it doesn’t give you the feeling of
the person’
[Janet]
Janet feels that written communication is not as sincere as
face-to-face communication where the subtle aspects of
communi-
cation give her an in-depth understanding of the person’s
character
not possible with written communication.
Not being able to naturally express one’s self negatively influ-
enced participants’ interaction with others. Participants felt
con-
strained and were concerned about causing offense, being
misunderstood, which led to feelings of isolation and not
belonging
to the student community. These difficulties recur throughout
the
participants’ accounts as a barrier to establishing meaningful
relationships.
3.2. Difficulty in establishing relationships – ‘you don’t really
know,
sometimes, who you’re talking to’

Participants’ accounts reveal importance placed on interacting
with other students to provide a support network. Participants
felt
frustrated that some students did not reveal their ‘real’ identity.
The lack of human interaction and sincerity associated with
writ-
ten communication meant that participants felt they were inter -
acting with strangers.
‘One or two of the students have chosen just to use their own
student number or a pseudonym, so you don’t really know,
sometimes, who you’re talking to’.
[Paul]
Paul was disappointed and frustrated that communication was
‘staid’ and ‘virtually non-existent’ and became more frustrated
when other students held back and did not reveal their true iden-
tity. He was unable to ‘read’ them and saw their lack of
openness as
a barrier to establishing relationships.
Whilst the discussion forums aim to provide a ‘meeting place’
for student interaction some participants felt exposed ‘talking’
publically on the forum.
‘it’s kind of nerving, you have to get into it so to speak [. . .]
the
fact that you are basically talking to a stranger, on air if you
like
through the airways [. . .] In a funny sort of way it kind of feels
unnatural because you’re not face to face, you can’t be face to
face.’
[John]
John’s feelings of exposure could be equated with public speak-

ing where the audience is often strangers, physically far
removed
and unresponsive. The notion of communication as unnatural
per-
sists as John’s reluctance to interact reveals his feelings of
alien-
ation in his reference to classmates as strangers. His narrative
portrays his sense of frustration and loss as he is deprived of
nat-
ural ways of communicating and struggles to cope with the
imper-
sonal online environment. Sarah also wants to establish herself
as a
member of the student community but is unable to identify with
some people. She differentiates between different types of
students.
‘the kind of hard core students that you see on the forum, you
know what I mean, continually posting massive, massive posts
and out shining the rest of us’
[Sarah]
Sarah does not want to identify with the very studious and cap-
able ‘hard core’ group of students who she perceives as
threatening
and domineering. She instead identifies with more laid-back
stu-
dents like herself in order to establish her own identity and her
place within the student community to gain a sense of
belonging.
To overcome the difficulties with establishing relationships
using written communication some participants sought other
means of communicating-talking on the telephone and meeting
at conferences or university open days. This allowed some

partici-
pants to establish purposeful relationships in the ‘real world’.
‘He wasn’t just a pseudo name on the forum. I’d met him in per-
son and knew who he was so I could just pick up the phone and
talk to him.’
[Janet]
Janet values her relationship with this student – their relation-
ship had been founded in the ‘real world’. Her real world is
tangible
and provides an environment where people are authentic, honest
and open in contrast with the pseudo ‘course world’. Her
relation-
ship with him is her ‘mini-support network’ as they support
each
other at stressful times during their years as online students. In
this way Janet could depend on him for support and avoid
interact-
ing with others.
‘. . . and I did find, you know, that even just people saying that
they’re struggling as well probably gives you an idea of where
everybody else is at and maybe you’re not on your own strug-
gling or something.’
[Fiona]
Fiona had not established any close relationships with other
students but found other students’ self-disclosures on the forum
a valuable source of comfort and reassurance. As a private
person
who felt she should be able to ‘get on with it’ she was reluctant
to disclosure her difficulties in coping and appreciated and
recog-

nized other students’ courage in publicizing their own struggles.
She found their admissions a relief – she was not the only one
struggling which helped alleviate her own anxiety and helped
her cope.
‘It puts you on an even keel and that’s sort of it’s in some ways
is, I wouldn’t say comforting, but it’s good to know that you’re
not just struggling yourself.’
[John]
John also had not established relationships with other students.
He also found reading other students’ disclosures on the forum
a
source of relief. This process provided him with a readily
available
and accessible source of support and encouragement without the
need to ‘force’ himself to interact while still being able to
share in other students’ experiences. All participants expressed
51 (2015) 539–545
experiencing stressful times during their studies and
conclusively
used the forum as a source of encouragement and reassurance.
However, student interaction varied and the depth and
frequency
was reflected in their different types of relationships with some
students being more willing to self-disclose and express their
struggles publically on the forum while others were more
reluctant
or chose to ‘lurk’ out of sight. Even though participants found
the
forum a source of support, a sense of not belonging to the

student
community prevails which is reflected in participants’ accounts
as
reference to fellow students as ‘they’, ‘people’ or ‘strangers’.
Common struggles and shared experiences with other students
were a more frequent source of support than tutor support.
Participants relied primarily on their tutors for academic sup-
port but there is an underlying need for tutors to recognize
partic-
ipants’ psychological needs. Participants valued tutors’ input
and
feedback on discussion forums as a means of developing and
for-
mulating their ideas and framing their knowledge. ‘Having the
tutors there have helped me formulate my ideas and sort of look
at [. . .] from a wider aspect.’ (Janet). However, participants
were
often unsure when and whether to approach their tutors for extra
support. Most participants communicated privately by email
with
tutors when they needed extra guidance, but there was a general
feeling of trepidation ‘because you don’t want to trouble
anybody’.
Participants sometimes felt they should be able to ‘get on with
it’
by themselves.
Written communication had been a barrier to Sarah establish-
ing relationships with tutors, but her feelings changed after a
face-to-face meeting.
‘I think, having a face that I can place to the name and also
knowing the personality [. . .] and chatting and knowing that
actually they are quite approachable. I feel that I can approach
them about anything and they won’t judge me or think I’m stu-

pid. But prior to that I probably was a bit – well I was – a lot
more hesitant.’
[Sarah]
Sarah’s relationship with her tutors in the written world was
based on mistrust and a misconception that they would judge
her or think her ‘stupid’ if she asked for help. Her face-to-face
meeting meant she could communicate in a way she was accus-
tomed to. This allowed her to see her tutors as genuine and
trust-
worthy people with whom she could establish a relationship.
After
this her feelings towards her tutors changed and she felt more
con-
fident and safer interacting with them. Fiona had a similar
experi-
ence following a telephone conversation with one of her tutors
for
the first time. In her narrative she reflects on a time when she
was
struggling to cope:
‘in the past when I was struggling a bit it would have been mor e
useful to have a conversation and hear a voice erh, erh, that
might have been a better way of dealing with it. I think you sort
of have this impression that they’re you know, that maybe
aren’t as human, but they obviously are.’
[Fiona]
Fiona needed her tutor’s comfort and reassurance at a time
when she was having difficulties coping but was reluctant to
dis-
close her feelings to them. Fiona’s perception of her tutors as
not

only strangers but not ‘as human’ portrays her deep sense of
isola-
tion and lack of tutor support.
Christine portrayed a different experience. She was not as
apprehensive as other participants about seeking extra help and
guidance from her tutors, although she did this privately by
email.
‘They seem to – they kind of encourage it so, erm, if they’re
offering I’m gonna use it’.
[Christine]
Christine enjoyed interacting on the forum with other students
and valued her tutors’ academic support and ‘a pat on the back
when you get a concept right’. Christine’s geographical location
meant that meeting her tutors face to face was not possible.
3.3. Comparing one’s self to others – ‘I tend to erm, maybe lose
a bit of
confident if I’m with a lot of people that appear to be doing a
lot better
than I can do’
Participants actively sought to establish their identity as stu-
dents within the community by comparing themselves to others.
These comparisons often left participants with a sense of
self-doubt – they felt other students were more qualified or
expe-
rienced than them.
‘They’ve all got a lot of experience in various different things
and sometimes you worry about putting your neck on the line
don’t you and looking a little bit silly, but em, you know, I’m
happy to do that, but you know, I’d like not to look silly if
possible’.

Sarah, who was younger than some of the other students, felt
her contributions to the forum would not be as valuable. The
forum
posed a personal risk to her and her sense of trepidation made
her
reluctant to post on the forum unless she felt it was ‘worth
sharing’.
‘I look up to a lot of them because they are, I find them quite
intelligent and it’s a kind of, they give me like a standard to
or a level to work with yeah? So there is a lot of respect there
from that point of view.’
[John]
John’s sense of inferiority is accentuated by his feeling that his
classmates are strangers who appear more intelligent than him.
His benchmark comparison ‘to look up to’ suggests a lack of
self-confidence. These feelings prevented him from establishing
himself as a valuable member within the student community.
‘I tend to erm, maybe lose a bit of confident if I’m with a lot of
people that appear to be doing a lot better than I can do’
[Fiona]
Fiona discusses a similar experience. Her lack of confidence
and
feelings of being undermined by other students is a barrier to
her
interacting.
Participants’ self-doubts posed a personal risk of embarrass-
ment when discussing and sharing academic issues with other
stu-

dents. However, when students shared their personal struggles
and
anxieties this helped alleviate these feelings temporarily but
per-
sistent feelings of self-doubt led to a reluctance to ‘put your
neck
on the line’ in front of others.
3.4. Written communication as an ineffective learning medium –
‘knowing whether you know what you know or whether you’re
kind of
way off the mark’
Participants’ narratives revealed that all felt online learning was
‘a struggle’ and ‘hard work’. Janet describing it as ‘a necessary
evil’
while John felt frustrated that his efforts went unrecognised.
Participants felt uncertain of their understanding of the
academic
material and assignment requirements, some attributing the
prob-
lem to their own weaknesses and others to ambiguous
guidelines.
This uncertainty peaked towards the end of modules and up to
and
including the assignments. Online learning with lack of
face-to-face interaction was portrayed as not ‘true learning’,
more
ambiguous and somehow incomplete.
(2015) 539–545 543
Janet and Sarah found reading the material off the screen diffi -
cult and discuss how reading printed copies ‘goes in better’.

‘there will be things that I don’t fully understand but I’ve man-
aged to cuff it so far em, you know, had I been in a more
face-to-face environment, I’m pretty sure that even just chat-
ting to other peers, we’d have kind covered the bases and dis -
covered where our little holes are and kind of filled them in
for each other’.
[Sarah]
Sarah felt fraudulent and concerned that compared to
face-to-face learning her online learning was incomplete and
lacked true understanding as she was unable to informally talk
things through with others. When discussing face-to-face
learning
her reference to other students as ‘peers’ reveals her ease in
iden-
tifying with others face-to-face, in contrast to the online
environ-
ment. The inability to informally and spontaneously talk things
through meant participants often harboured feelings of
self-doubt and ambiguity in relation to their assignments. They
were often unsure whether they had fully understood.
‘you’re really trying to pull everything together and just hope
that you’re heading in the right direction. [. . .] ‘I miss it about
getting the answers right away I think is what I miss. Having
the discussions right away to kind of put you on the right track.
Or not even put you on the right track but just to say I’m grasp-
ing some of this and you’re in the right direction.’
[Christine]
Christine portrays serious doubts about her understanding
compounded by the lack of immediate feedback due to the time
zone difference of her geographical location. We gain a sense of

her frustration of needing help ‘right away’ but having to wait
as
she becomes plagued with ambiguity and self-doubt. This time
dif-
ference also fuels her feelings of isolation ‘as when I’m doing
my
homework everybody else is sleeping’.
Christine and other participants valued the diversity of the dis -
cussion forums as a place for students to share knowledge and
gain
different perspectives. ‘it’s kind of nice for them to provide
their
perspective coz then I always think to myself, well I didn’t
consider
that. So, I’m learning a lot of things just on the discussion
forum
alone, which is kind of neat’. However, participants were
reluctant
to be the first to post their comments for fear that they might
give
the ‘wrong’ answer.
‘I’m one of those people who would come back the next day and
revisit it unless I really knew my answer, or thought I really
knew
my answer, so I tend to sit and listen more and then I tend to
talk.’
[Christine]
The asynchronous discussion forum afforded participants extra
time to formulate their thoughts and ideas. Christine also felt it
afforded her protection from the ‘strong personalities’ and
provided
an equal opportunity for all students to participate in

discussions.
‘I think if we were in a classroom – you always seem to have
those strong personalities that take over – erm so I think you
would find you wouldn’t get the depth of the responses that
you do in a class that you find on the forum.’
[Christine]
However, students’ trepidation and reluctance in posting
answers on the forum often meant discussion threads took time
to get started. Participants recognized this in other students and
attempted to support and encourage them by acknowledging and
responding to their postings.
‘it’s nice to kind of acknowledge when someone’s says some-
thing that you agree with or likewise if there’s something that
I feel completely differently, I’ll try and, you know, construc-
tively, saying ‘well actually I feel this..’ but sort of make it
more
of a discussion as if we were having it in person.’
[Sarah]
Sarah struggles to express herself effectively using written com-
munication, worrying that she may be misunderstood. She
recog-
nizes the fear of being judged by others and attempts to appear
friendly and approachable whilst interacting and trying to effec -
tively project her own ideas as a demonstration of her support.
Despite the distinct communication difficulties which permeate
their learning experience participants found reading the postings
on the forum valuable in expanding their knowledge and experi -
ence – identified as their most important learning outcome.

All participants reported choosing the online course because it
provided them an opportunity to study which otherwise would
be either ‘very difficult’ or impossible due to work,
geographical
and/or family commitments. The flexibility of ‘‘being able to do
it
at my own pace’’ and ‘‘study in my own time’’ were
advantageous
to all participants.
4. Discussion
It has been suggested that written communication is a benefi -
cial way of learning – it helps students to become reflective
about
what they write, encouraging discipline and rigor in thought
pro-
cessing and communication (Garrison, Anderson, & Archer,
2000).
However for students this can be a frustrating and daunting
expe-
rience and written communication may be experienced as a
barrier
to students establishing relationships. Our findings echo
previous
work that has discussed the importance of identity in online
learn-
ing practices (Oztok et al., 2012) and has highlighted
difficulties in
establishing identity in written communication (Feenberg,
1989).
The constraints of written communication devoid of the aspects
of face-to-face interaction meant that participants often felt that
they were not communicating with ‘real’ people and were
unable
to cultivate trust. Participants found communicating via

text-based discussion forums ‘unnatural’ and ‘non-human’. This
had a negative effect on their interactions and ability to
establish
relationships with other students and tutors. This lack of
humanity
lead to a sense of lack of tutor support and isolation as
participants
struggled to adjust and cope. Additionally, tutors may not be
seen
as genuine individuals with whom one can establish a
trustworthy
relationship.
Previous work has suggested that levels of anxiety are high in
novice online learners as they learn how to communicate online,
but gradually decrease as they become more familiar with the
medium and establish relationships with other students
(Zembylas, 2008). Paul’s experience, as a novice online learner,
gives insight into this difficult process as his anxiety escalates
to
feelings of bewilderment and frustration as he struggles to
project
his own identity and understand others’. However, feelings of
anx-
iety persisted in non-novice participants familiar with online
learning, particularly in relation to posting comments on the
dis-
cussion forum. The notion that everybody on the forum could
‘hear’ and ‘see’ them without the reassuring and purposeful
reac-
tions such as a nod of the head meant that communicating repre-
sented a real personal risk (Feenberg, 1989) of embarrassment
in
case they gave the ‘wrong’ answer, were misunderstood or
caused
offence. These feelings of trepidation and ‘not really knowing

who
you’re talking to’ made participants reluctant to interact. These
findings do not support the pedagogical enthusiasm for the ease
and abundance of CMC online learning (Garrison et al., 2000).
Whilst participants recognized the risk involved in interacting
they
felt negatively towards other students who did not reveal their
true identity and maintained their anonymity by using a
51 (2015) 539–545
pseudonym as a ‘kind of mask’ (O’Regan, 2003). This perceived
lack
of honesty and openness fueled their difficulties.
Participant’s accounts revealed different coping strategies for
dealing with communication difficulties with Janet retreating
from
the pseudo ‘course world’ and John ‘forcing’ himself to
interact.
John’s experience shows that while interactive responses may
increase over time (Rouke et al., 2001) as students become
accus-
tomed to this form of communication, negative feelings are not
reflected in quantitative measures. Caution is necessary in
equat-
ing increased frequency outcome measures to increased student
amenity or satisfaction. Previous work has suggested that
students
who interact less are often less satisfied with their learning
(Rovai
& Wighting, 2005) and have higher attrition rates (Morgan &
Tam,
1999). However, satisfaction as found in this study reflects stu-

dents’ reactions to specific or multidimensional factors (Sherry,
Fulford, & Zhang, 1998), events and different affective states. It
is
possible to have mixed feelings of satisfaction and
dissatisfaction
– ‘at points be really satisfied’ and at others feel ‘it’s a
necessary
evil’. All participants conclusively found online learning harder
than face-to-face learning which was reflected in their
expression
of more negative than positive emotions (MacFadden, 2007;
Zembylas, 2008). Whilst negative states may not reflect partici -
pants’ dissatisfaction with the course per se it does reflect their
struggles in adjusting to and coping with this learning medium
and supports the need to recognize emotions as fundamental to
social and academic aspects of online learning.
Inherent to participants’ coping strategies was readily available
and accessible support from other students on the forum.
Participants found other students self-disclosures a source of
encouragement and support as it puts students ‘on an even keel’
and reassures them – ‘you’re not on your own struggling’. Use
of
the forum in this way helps build a sense of student community
(Rovai & Wighting, 2005). However, feelings of alienation did
often
persist. Participants’ personal risk of embarrassment and
trepidation were also reflected in their reluctance to seek tutor
support. The need for tutors to recognize these feelings and
allay
misconceptions and fears lends support to criticism that
professionals may be de-valuing emotion with facilitators
missing
important emotional experiences of online learners (MacFadden,
2007).

Our findings highlight the need for research methodologies that
enable the identification of the psychological and emotional
pro-
cesses involved in online learning. Frequency of student
interac-
tion as a quantitative outcome tells us nothing of students’
experience and how they may or may not become accustomed to
written communication. There is a need to recognize learners as
experts of their own experience. Only in this way we can
establish
what is really important to online learners.
5. Conclusion
Student interaction is fundamental in establishing social and
academic cohesion between students (Perez-Prado &
Thirunarayanan, 2002; Rovai & Wighting, 2005; Shea et al.,
2014)
and the online environment has been touted as a means of
promot-
ing constructivist learning (Schell & Janicki, 2013). However
this
study has highlighted how communication difficulties may act
as
a barrier to effective interaction. Written communication may
be
experienced as unnatural and ‘not real’. As a result students
may
struggle to convey their own identity and understand others
lead-
ing to difficulties in establishing relationships. Students may be
reluctant to communicate and contribute to discussion forums
due to feelings of vulnerability and fear of getting it ‘wrong’.
To enhance student interaction two important needs were
identified:
1. The need for tutors to establish themselves as ‘human’ and

approachable by cultivating a safe and interactive environment.
2. The need for tutors to actively encourage online interaction.
The need to provide spaces that encourage interaction and col -
laboration is well documented (Häkkinen & Hämäläinen, 2012).
However it is not enough to simply lead learners to technology
and tutors must provide assistance in how to form online
learning
communities (Orey, Koenecke, & Crozier, 2003). This
assistance
may involve asking students to complete a shared biographical
profile, engaging students in early ice breaker group activities
and encouraging students to post questions using the discussion
board forum, using private email only as a last resort.
Tutors may cultivate a safe and interactive environment by
organizing one-to-one telephone meetings with students upon
commencement of a learning unit. While frequent one-to-one
interactions may not be viable due to demands on staff time, a
brief
telephone call as students embark on a learning unit is likely to
make learners feel more confident in interacting with tutors and
more able to seek support and guidance when needed.
These recommendations will help allay feelings of trepidation
and the personal risk of embarrassment and will encourage stu-
dent interaction to cultivate a sense of belonging to the student
community, positively reinforcing academic and social support.
A
supportive environment will help alleviate feelings of isolation
and alienation and enhance students’ coping skills in adjusting
to
the online environment.
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page iEmployment Law for
Business
Ninth Edition
Dawn D.
Bennett-
Alexander
University of Georgia
Laura P. Hartman
DePaul University
page ii
EMPLOYMENT LAW FOR BUSINESS, NINTH EDITION
Published by McGraw-Hill Education, 2 Penn Plaza, New York,
NY 10121.
Copyright © 2019 by McGraw-Hill Education. All rights
reserved. Printed in the
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2009. No part of
this publication may be reproduced or distributed in any form or
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McGraw-Hill Education, including, but not limited to, in any
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Some ancillaries, including electronic and print components,
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ISBN 978-1-259-72233-2
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Cover Image: ©Diane Labombarbe/iStock/Getty Images
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All credits appearing on page or at the end of the book are
considered to be an
extension of the copyright page.
Library of Congress Cataloging-in-Publication Data
Names: Bennett-Alexander, Dawn, author. | Hartman, Laura
Pincus, author.
Title: Employment law for business / Dawn D. Bennett-
Alexander, University of
Georgia;
Laura P. Hartman, DePaul University.
Description: Ninth edition. | New York, NY: McGraw-Hill
Education, [2018] |
Includes bibliographical references and index.
Identifiers: LCCN 2017047701| ISBN 9781259722332 (alk.
paper) |
ISBN 1259722333 (alk. paper)
Subjects: LCSH: Labor laws and legislation—United States. |
Discrimination
in employment—Law and legislation—United States. | LCGFT:
Casebooks
Classification: LCC KF3455.B46 2018 | DDC 344.7301—dc23
LC record available at https://lccn.loc.gov/2017047701
The Internet addresses listed in the text were accurate at the

time of publication.
The inclusion of a website does not indicate an endorsement by
the authors or
McGraw-Hill Education, and McGraw-Hill Education does not
guarantee the
accuracy of the information presented at these sites.
mheducation.com/highered
https://www.lccn.loc.gov/2017047701
http://www.mheducation.com/highered
page iv
page iiiDedication
To my Ancestors who endured the Middle Passage, slavery, and
its
aftermath, so that I could exist; and my parents, Rev. William
H., and
Anne P. Liles Bennett, who, by their lives of steadfast hard
work, faith,
and civic engagement made me and my contributions not only
possible, but inevitable.
—My progeny:
Jenniffer Dawn Bennett Alexander Jones
Ann Alexis Bennett Alexander
Tess Alexandra Bennett Harrison
—and my Grands:
Makayla Anne Jones
Edward Christian Alexander Jones
You are such a big part of why I work so hard to make the
world a

better place.
— The indomitable Lizzie Lou Jackson Thomas (1918–2015)
who was
one of my first introductions into coming to understand the
reality of
the dehumanizing invisible lives of difference that we lead and
that I
needed to work to change it. Lizzie Thomas was a long-time
member
of the church my father pastored. After the birth of my first
daughter,
Ms. Thomas insisted on giving me the gift of spotlessly
cleaning my
heretofore unseen house from top to bottom without asking a
single
question about what went where. When I asked how in
the world she knew what to do, her simple answer
opened my eyes to an entirely new reality: she was a maid in the
homes of the wealthy in Washington, DC. I was stunned. I had
known
her all my life and had no idea. I only ever knew her as a tiny,
hardworking, generous, dependable church member with a big,
kind
heart, indefatigable energy, and ready, tinkling laugh. I quickly
learned
page v
that those she worked for had no idea of who she was outside of
being their maid. I, on the other hand, only knew her as a
wonderful
human being and didn’t even know she was a maid. They had no
idea

of the lively, lovely Lizzie Thomas I had known and enjoyed all
my life.
They had no real idea of who she was other than the woman
who
cooked for them, cleaned for them, and served their needs. That
simple exchange spurred me on to a life of fighting for the
equality of
humanity and a quest to have people viewed as human beings
deserving of respect rather than nameless, faceless group
members
judged on the basis of their socially constructed “place” in
society
based on race, gender, and other immutable characteristics. RIP,
Lizzie Thomas. And thank you. Your exemplary life and simple
words
had a profound impact far greater than you ever knew.
—My sister, Brenda Lynn Bennett Watkins, without whose love,
support and devotion my life would be such a different place.
Thank
you, my sister. What would I do without you?
—And last but certainly not least, to Jere W. Morehead,
22nd president of the University of Georgia and my 30-
year colleague. Keep up the good and courageous work and I’ll
keep
sending the love. Simply put: You. Rock.
D D B-A
For those whose voices continue to be silenced by others, ours
is now
and always a responsibility to speak. Kenbe la: stand firm, stay
true.
L P H

page viAbout the Authors
Dawn D. Bennett-Alexander University of Georgia
Courtesy Mike Horn
With over forty awards to her credit, Dawn D. Bennett-
Alexander,
Esq., is a tenured associate professor of Employment Law and
Legal
Studies at the University of Georgia’s Terry College of
Business. An
attorney admitted to practice in the District of Columbia and six
federal
jurisdictions, she is a cum laude graduate of the Howard
University
School of Law and a magna cum laude graduate of the Federal
City
College, now the University of the District of Columbia. With
her
coauthor, she was cofounder and cochair, of the Employment
and
Labor Law Section of the Academy of Legal Studies in Business
and
coeditor of the section’s Employment and Labor Law Quarterly;
past
coeditor of the section’s newsletter; and past president of the
Southeastern Academy of Legal Studies in Business. Among
other
texts, she coauthored, with Linda F. Harrison, McGraw-Hill’s
groundbreaking The Legal, Ethical, and Regulatory
Environment of
Business in a Diverse Society, in 2011. Bennett-Alexander
taught

Employment Law in the University of North Florida’s MBA
program
from 1982 to 1987 and has been conducting Employment Law
seminars for managers and supervisors since 1985. Prior to
teaching,
Bennett-Alexander worked in Washington, DC, at the Federal
Labor
page vii
Relations Authority, the White House Domestic Council, the
Federal
Trade Commission, the Department of Justice Appellate
Division,
Antioch School of Law, and and as law clerk to the Honorable
Julia
Cooper Mack as she became the first black female judge to be
appointed to a court of last resort in the country, the D.C. Court
of
Appeals. Bennett-Alexander publishes widely in the
Employment Law
area; is a noted expert on Employment Law and Diversity and
Inclusion issues; was asked to write the first-ever sexual
harassment
entry for Grolier Encyclopedia; edited the National Employee
Rights
Institute’s definitive book on federal employment rights; has
chapters
in several other books including five Employment Law entries
in Sage
Publications’ first and second editions of the Encyclopedia of
Business
Ethics and Society; has been widely quoted on TV and radio,
and in

the print press, including USA Today, The Wall Street Journal,
and
Fortune magazine; and is founder of Practical Diversi ty,
consultants
on Diversity and Inclusion as well as Employment Law issues.
Among
other accomplishments, Bennett-Alexander was one of only ten
winners of the prestigious national award for teaching
excellence, the
2015 Elizabeth Hurlock Beckman award, presented an invited
diversity paper for the Oxford Roundtable at Oxford University,
Oxford,
England in 2014, and was a 2000–2001 recipient of the
Fulbright
Senior Scholar Fellowship under which she taught at the Ghana
School of Law in Ghana, West Africa, and conducted research
on race
and gender in employment. She has also taught in Budapest,
Krakow,
Austria, Prague, Australia, New Zealand, Italy, and Costa Rica.
She is
the recipient of the 2011 University of Georgia President’s
Martin
Luther King, Jr., Fulfilling the Dream Award, her University’s
highest
diversity award, for her outstanding work in building bridges to
understanding and unity; the 2010 recipient of the
University of Georgia’s Terry College of Business inaugural
Diversity Award; and the 2009 recipient of the Ernst & Young
Inclusive
Excellence Award for Accounting and Business School faculty.
She
dedicates all her research and writing to her Ancestors, three
daughters, and two grandchildren.

Laura P. Hartman DePaul University (Chicago) & The School of
Choice/l’Ecole de Choix (Haiti)
Courtesy Marketing & Communications Department, Questrom
School of Business
Laura Pincus Hartman is on extended leave from DePaul
University to
serve as Executive Director of the School of Choice Education
Organization, a U.S.–based nonprofit that she co-founded,
which
oversees the School of Choice/l’Ecole de Choix, a unique
trilingual
elementary school in Haiti that provides high-quality leadership
development education to children living in extreme conditions
of
poverty.
From 2015–2017, Prof. Hartman also served as the inaugural
Director of the Susilo Institute for Ethics in the Global
Economy and
Clinical Professor of Business Ethics in the Department of
Organizational Behavior. She also was an Associated Professor
at the
Kedge Business School (Marseille, France).
At DePaul, Prof. Hartman is Vincent de Paul Professor of
Business
Ethics at DePaul University’s Driehaus College of Business and
has
held numerous other positions, such as Associate Vice President
for
Academic Affairs and Director of its Institute for Business and
Professional Ethics. Hartman also has taught at INSEAD
(France),

HEC (France), the Université Paul Cezanne Aix Marseille III,
the
University of Toulouse, and at the Grenoble Graduate School of
Business. Hartman is past president of the Society for Business
Ethics, presently co-chairs its Committee on International
Collaborations, and directs its Professional Mentorship
Program.
In the private sector, concurrent to her academic work, Hartman
was Director of External Partnerships for Zynga.Org (2009–
2012),
through which Zynga players of FarmVille, Words with Friends,
and
other online games have contributed over $20 million toward
both
domestic and international social causes. From 2009–2011, she
represented DePaul University on the Worldwide Vincentian
Family’s
Vincentian Board for Haiti, and was instrumental in the hands-
on
design and implementation of a micro-development, finance,
and
education system for people living in poverty in Haiti. A
thought leader
in leadership and ethical decision making, Hartman’s work has
resulted in the publication of more than 80 articles, cases, and
books,
and demonstrates the potential for innovative and profitable
partnerships to alleviate poverty while providing measurable
value to
all stakeholders involved.
A winner of the Microsoft CreateGOOD award at Cannes Lions

(2015), named one of Ethisphere’s 100 Most Influential People
in
Business Ethics, and one of Fast Company’s Most Creative
People in
Business (2014), Hartman serves as an advisor to a number of
start-
ups and has consulted with multinational for-profits, non-
profits, and
educational institutions. She was invited to BAInnovate’s
inaugural
UnGrounded lab and has been named to Fast Company’s
“League of
Extraordinary Woman.”
Hartman graduated magna cum laude from Tufts University and
received her law degree from the University of Chicago Law
School.
She divides her time between Haiti, Chicago, and Sint Maarten,
and
has been a mother to two daughters.
page viiiPrelude to the 9th Edition
Cover photo: The cover photo is of a classic and well -known
American quilt block called Drunkard’s Path. I am an avid
quilter not
just because I enjoy it, but because in so many ways for me,
quilting is
a metaphor for life and so much in this text. Nothing illustrates
that
more than this quilt block. The quilt block is composed of only
two
curved pieces, one concave quarter square and one convex
quarter

circle. While the curves fit together perfectly and look neat and
tidy
when you look at the finished, quilt, when they are being sewn
together, right sides facing, the two pieces look like they will
never fit.
After all, one is concave and one is convex. Putting them
together is
not an easy task and looks messy in the process. But, in fact,
they do
fit together and the result is a lovely quilt block with graceful,
beautifully fitting curves. The reason I love Drunkard’s Path so
much
and enjoy working with it is that it always reminds me of what
so much
of this text is about. It is one of the reasons I admire it so.
People who
seem quite different in terms of race, gender, ethnicity, religion,
sexual
orientation, disabilities, etc., much like the Drunkard’s Path
pieces,
and may not seem like they will fit together. But, in the end,
they
actually do end up fitting together quite well when the law is
used and
applied as intended. In addition, just by using different ways of
putting
these same two pieces together and using contrasting colors, the
quilt
can look entirely different including circles, concentric
diamonds, and
ocean waves. Like people, change a thing here or there like
hair, eye
color, skin color, etc., and we may look different, but, like the
two quilt
pieces, we are all actually the same basic thing: a human being.
I

hope you enjoy this beautiful cover as much as we do.
On this day, as I write this, the country has just experienced the
election and inauguration of a new president of the United
States (see
Addendum, below). It is unusual for us to mention politics i n
our
pages. After all, we, as a society, like to think that “the law is
the law”
page ix
so politics does not come into it. Since this is a legal textbook
we
generally honor that. We do so even though we realize that law
does
not occur in a vacuum. It is not created in one. It is not
interpreted in
one, and it is not enforced and executed in one. Other factors
greatly
impact both what becomes law as well as how laws are imposed,
executed, and interpreted.
However, like the new president, this presidency and
administration
is not business as usual. The reason we mention it is not
political.
Everyone is entitled to their own political beliefs and we
absolutely
respect and honor that. The reason the recent election must be
mentioned is because a great deal of the election cycle focused
on
issues that are greatly impacted by this text. These issues were
portrayed in a very negative light for nearly a year and a half.

In the
end, the candidate who did so won the election. The impact of
the
negative portrayal by such a high-profile figure was
immediately clear
when individual acts of harassment and violence against groups
protected by the laws in this text broke out across the country.
The
perpetrators cited the position advocated by the winner as the
basis
for their feeling validated in carrying out the violence. Time
magazine
reported that the Southern Poverty Law Center noted a
significant rise
in hate crimes in the weeks after the election, with over 200
incidents
in just over one month, as white supremacists celebrated the
winner’s
victory.1
As such, and because the workplace is a microcosm of the
greater
society, there are bound to be repercussions in the workplace.
Since,
by the nature of the negativity, many of the groups protected by
the
laws herein and traditionally the objects of discrimination will
form
most of those claims, it is worthy of note here. So, politics
or no, this we cannot ignore. We choose not to take the
head-in-the-sand approach in providing you information on this
subject
matter. It will also help you to be prepared and have context for
what
will inevitably find its way into the workplace.

This textbook is primarily about workplace discrimination under
the
American laws providing protection from discrimination against
groups
traditionally treated less well because of some immutable
characteristic having nothing to do with their qualifications for
a job.
Women, the disabled, racial and ethnic minorities, and religious
minorities have all been, at some point or another,
marginalized,
demeaned, castigated, even mocked by the person now leading
the
country. Supporters took this as permission to do the same, or
as
validation of their own previously held positions regarding
those
groups. For instance, former Ku Klux Klan leader, David Duke,
today
tweeted out his congratulations on the inauguration, saying “We
did
it!”2 Tomorrow, the day after the inauguration, Washington,
DC, is
scheduled to have what has been said to be the largest
demonstration
in the history of National Mall demonstrations. The Women’s
March is
bringing together from all over the country, thousands of
women as
well as men, who are concerned about the way women and
others
have been treated by the new officeholder and what that
portends for
the future. Over 600 demonstrations are being held across the

rest of
the country and world that day for the same reason.3
But, aside from the people themselves, who may be the object
of
the claims, there is also the issue of the legal changes to come.
We
are not seers and we have no crystal ball. However, given the
promises made by the new officeholder over the past 18 months,
and
the consistency of those promises regarding issues impacting
these
same groups, we have every reason to believe that changes will
come
and that they may greatly impact the groups protected by these
laws,
including women, immigrants, minorities, the LGBT
community, and
issues such as equal pay, family leave, and labor unions, among
others.
In the 24+ years since we first began authoring this text, we
have
seen presidents come and go. We have watched as presidents
either
engaged in some version of “benign neglect,” or as the outgoing
president (Obama), vigorous enforcement of the laws covered
by this
text. We rarely mention them outside of the context of saying
they
signed something into law. We have never given an opinion of
them.
This time around, given the statements made over the past 18
months
of the election cycle by the winner of the election, we must. We
must

say that we stand steadfastly behind the laws this textbook
addresses.
page x
We must say that we believe in the worth and dignity of all
employees
and applicants—all human beings—and believe they are due
respect
as human beings. Any policies that fly in the face of that are not
okay
with us. We hope for the best, but given the rhetoric of the past
18
months, we nervously await the fate of these laws. This is in
stark
contrast to this author’s elation on September 24, 2016, as she
stood
before the 1964 Civil Rights Act exhibit at the historic
dedication and
opening ceremony of the Smithsonian’s newest addition, the
National
Museum of African American History and Culture on the
National Mall
in Washington, DC.
Meanwhile, we will continue to do our part to enlighten, to
teach,
and to stand in the truth of the U.S. Constitution that all are
created
equal and endowed with certain inalienable rights. Rights
carried out
by both the U.S. Constitution as well as the laws reflecting them
such
as those in this text. As an addenda to that, I invite you to check

out
my TED Talk on these issues on YouTube. Just put my name
and/or
Practical Diversity into your search engine or YouTube search
and it
will show up.
Enjoy! As always, we are delighted to receive your
feedback and we very much appreciate it!
Dawn D. Bennett-Alexander
Athens, GA
January 20, 2017
Addendum: Nearly six months have passed since I wrote the
prelude
immediately above. It is so interesting to see the changes
between
then and now. As you are well aware, the Women’s March was,
in fact
held, and it became an on-going, embarrassing sore spot that the
attendance was much larger than that of the inauguration the
day
before. Despite the fact that EEOC commissioner, Chai
Feldblum,
said on March 14, 2017, that the agency’s priorities would
remain the
same under the new administration,4 in the nearly six-month
time
period since the above, some of our worst fears are being
realized.5
There has been a rolling back of several gains made in the law
over
decades. Among them, there has been an order across the board

to
page xi
federal agencies to scale back civil rights activities, including a
proposal to fold the four-decades-old Office of Federal Contract
Compliance Programs (OFCCP) into the Equal Employment
Opportunity Commission (EEOC).6 Both are extremely
important
agencies with very different roles in stamping out workplace
discrimination. The executive order put in place by President
Obama
to make federal contractors who supply goods and services to
the
federal government more accountable for discriminatory
employment
practices and deter them has been revoked.7 A religious liberty
executive order has been instituted that could allow employers
to
discriminate on the basis of their religious beliefs,8 to name a
few
things. Just today, again huge demonstrations were held across
the
country, in part in response to the rise in racist and violent acts
toward
minorities, most recently the stabbing death of two (and injury
of a
third) Portland, Oregon, commuter train passengers who tried to
intervene when allegedly white supremacists were shouting
“hate
speech toward a variety of ethnicities and religions” at a young
woman
wearing a hijab and her friend.9 Things are moving very
quickly. All we

can say is that the text is as up to date as it could be at the time
of
publication, but do keep an eye out for changes that may impact
what
has been the established law you will read within these pages.
DDB-A
6/3/2017.
With such gratitude to so many, some of our students today
come from home environments of political peace and
stability. Others come from countries that currently or
historically are
or were in conflict. Who could have anticipated that ecosystems
that
were traditionally considered stable would be the source or
location of
today’s instability? Whether one supports their local systems or
opposes them, likely all have been somewhat surprised by the
upheaval the world has experienced in recent years.
Often, we and our students fall into a sense of complacency
surrounding the issues that fill the front pages of newspapers
today
and do not share the passion represented so poignantly in
Dawn’s
message, above. That is unfortunate because, without passion,
there
is inaction and apathy.
To the contrary, no matter what issues are important to you, we
encourage you to use your voices, inspired by education, to
impact
your lives and the lives of others in a way that raises the quality
of life
for all.

Dawn might agree that I have not been able to keep quiet in the
face of injustice. The responsibility that we now have as
educators—or
even as mere information sources—is how to transfer not
merely the
information but also the empathy, the deeply held disquiet in
the face
of injustice, the grueling sense of indignity even when the
affront is not
against ourselves. Through this text and our work, we seek to
equip
others with a strength of voice so that those without a voice can
be
heard more clearly.
Many years may have passed since our first edition was
published,
and that first edition came out a quarter of a century after Title
VII had
been passed. It may seem like a great deal of time, and perhaps
much
has changed, but not enough. Whether one agrees with his
politics or
not, it seems fitting to begin each edition with past President
Obama’s
words, “Change will not come if we wait for some other person,
or if
we wait for some other time. We are the ones we’ve been
waiting for.
We are the change that we seek.”
Be that change.
Laura Pincus Hartman
Port-au-Prince, Haiti & Chicago, USA June 2017

1Reilly, Katie, “Racist Incidents Are Up Since Donald Trump’s
Election. These Are
Just a Few of Them,” Time (November 13, 2016),
http://time.com/4569129/racist-
anti-semitic-incidents-donald-trump/.
2Source: http://www.huffingtonpost.com/entry/donald-trump-
david-
duke_us_58824741e4b0e3a735689f21.
3Wang, Hansi Lo, “Protesters Prepare for Women’s March after
Trump’s
Inauguration,” NPR (January 20, 2017),
http://www.npr.org/sections/thetwo-
way/2017/01/20/510706246/protesters-prepare-for-womens-
march-after-trumps-
inauguration.
http://www.time.com/4569129/racist-anti-semitic-incidents-
donald-trump/
http://www.huffingtonpost.com/entry/donald-trump-david-
duke_us_58824741e4b0e3a735689f21
http://www.npr.org/sections/thetwo-
way/2017/01/20/510706246/protesters-prepare-for-womens-
march-after-trumps-inauguration
4Otto, Nic, “EEOC to maintain key priorities under new White
House,” Benefit
News (March 15, 2017),
https://www.benefitnews.com/news/employee-benefits-
news-and-forum-expo
5Beirich, Heidi, “Hatred Is on the Rise in America, But What
Caused It?’ Southern

Poverty Law Center for HuffPost (June 3, 2017),
http://www.huffingtonpost.com/entry/what-caused-increase-
hate-
crimes_us_593071f5e4b010df62cc7671?ixp
6Eilperin, Juliet, Emma Brown, and Darryl Fears, “Trump
Administration Plans to
Minimize Civil Rights Efforts in Agencies,” The Washington
Post (May 29, 2017),
https://www.washingtonpost.com/politics/trump-administration-
plans-to-minimize-
civil-rights-efforts-in-agencies/2017/05/29/922fc1b2-39a7-
11e7-a058-
ddbb23c75d82_story.html?utm_ter m=.da1984adb735.
7Presidential Executive Order on the Revocation of Federal
Contracting Executive
Orders, 4/29/17, https://www.whitehouse.gov/the-press-
office/2017/03/27/presidential-executive-order-revocation-
federal-contracting-
executive.
8Presidential Executive Order Promoting Free Speech and
Religious Liberty,
5/4/2017. https://www.whitehouse.gov/the-press-
office/2017/05/04/presidential-
executive-order-promoting-free-speech-and-religious-liberty
9Marco, Tony, Jason Hanna, and Steve Almasy, “Portland train
stabbings: FBI
looking into possible hate crime charges,” CNN (May 28, 2017),
http://www.cnn.com/2017/05/26/us/portland-train-stabbing/
https://www.benefitnews.com/news/employee-benefits-news-
and-forum-expo
http://www.huffingtonpost.com/entry/wha t-caused-increase-

hate-crimes_us_593071f5e4b010df62cc7671?ixp
https://www.washingtonpost.com/politics/trump-administration-
plans-to-minimize-civil-rights-efforts-in-
agencies/2017/05/29/922fc1b2-39a7-11e7-a058-
ddbb23c75d82_story.html?utm_term=.da1984adb735
https://www.whitehouse.gov/the-press-
office/2017/03/27/presidential-executive-order-revocation-
federal-contracting-executive
https://www.whitehouse.gov/the-press-
office/2017/05/04/presidential-executive-order-promoting-free-
speech-and-religious-liberty
http://www.cnn.com/2017/05/26/us/portland-train-stabbing/
page xiiPreface
Must an employer provide breaks for a nursing mother to
express
milk, and a private place in which to do it?
Must an employee allow time off to care for a sick child if the
employee is gay and is raising a child not his own, with his
partner of
several years?
If a disabled employee could perform the job requirements when
hired, but the job has progressed and the employee is no longer
able
to perform, must the employer keep her on?
Is an employer liable when a supervisor sexually harasses an
employee, but the employer knew nothing of it?
Is an employer liable for racial discrimination because she
terminates
a black male who refuses to abide by the “no-beard” policy?

Can an employer be successfully sued for “reverse
discrimination” by
an employee who feels harmed by the employer’s affirmative
action
plan?
Can an employer institute a policy prohibiting Muslim women
from
wearing their hijabs (head scarves)?
If an employer has two equally qualified applicants from which
to
choose and prefers the white one to the black one, is it illegal
discrimination for the employer to hire the white applicant, or
must
the employer hire the black one?
Must an employer send to training the employee who is in line
to
attend, if that employee will retire shortly?
Can an employer terminate a female employee because male
employees find her pleasing shape too distracting?
Is it a violation of wage and hour laws for an employer to hire
his 13-
page xiii
year-old daughter to pick strawberries during the summer?
Is an ex-employer liable for defamation if he gives a negative
recommendation about an ex-employee to a potential employer

who
inquires?
Must an employer disclose to employees that chemicals wi th
which
they work are potentially harmful?
Can an employer stop employees from forming a union?
These types of questions, which are routinely decided in
workplaces
every day, can have devastating financial and productivity
consequences if mishandled by the employer. Yet, few
employers or
their managers and supervisors are equipped to handle them
well.
That is why this textbook was created.
Between fiscal years 1970, when newly enacted job
discrimination
legislation cases started to rise, and 2016, the number of federal
discrimination suits grew from fewer than 350 per year to its
all-time
high of just shy of 100,000. A major factor in this statistic is
that the
groups protected by Title VII of the Civil Rights Act of 1964
and similar
legislation, including minorities, women, and employees over
40, now
constitute over 70 percent of the total workforce. Add to
that number those protected by laws addressing
disability, genetic and family medical history, wages and hours,
and
unions; workplace environmental right-to-know laws; tort laws;
and
occupational safety and health laws, and the percentage

increases
even more. The U.S. Department of Labor alone administers
more
than 180 federal laws covering about 10 million employers and
125
million workers.1
It is good that employers and employees alike are now getting
the
benefits derived from having a safer, fairer workplace and one
more
reflective of the population. However, this is not without its
attendant
challenges. One of those challenges is reflected in the statistics
given
above. With the advent of workplace regulation by the
government,
particularly the Civil Rights Act of 1964, there is more of an
expectation by employees of certain basic rights in the
workplace.
When these expectations are not met, and the affected
population
page xiv
constitutes more than 70 percent of the workforce, problems and
their
attendant litigation will not only arise, but are likely to be
numerous.
Plaintiffs generally win nearly 50 percent of lawsuits brought
for
workplace discrimination. The median monetary damage award
is

$155,000.2 As you will soon see, the good news is that the vast
majority of the litigation and liability arising in the area
covered by
these statistics is completely avoidable. Many times the only
difference between an employer being sued or not is a manager
or
supervisor who recognizes that the decision being made may
lead to
unnecessary litigation and thus avoids it.
When we first began this venture more than 20 years ago, we
did
not know if we would be able to sell enough copies of the
textbook to
justify even having a second edition. Luckily, we had a
publisher who
understood the situation and made a commitment to hang in
there
with us. The problem was that there was no established market
for the
text. There were so few classes in this area that they did not
even
show up as a blip on the radar screen. Actually, we only knew
of two.
But having worked in this area for years, we knew the need was
there,
even if the students, faculty, and even employers were not yet
aware
of it.
We convinced the publishers that “if you publish it, they will
come.”
And come they did. From the minute the book was first
released, it
was embraced. And just as we thought, classes were developed,

students flooded in, and by the time the smoke cleared, the first
edition had exceeded all the publisher’s forecasts and
expectations.
The need that we knew was there really was there, and an entire
discipline was created. The textbook spawned other such texts,
but
remains the leading textbook of its kind in the country.
We cannot thank the publishers enough for being so committed
to
this textbook. Without their commitment, none of this would
have
happened. And we cannot thank professors and students enough
for
being there for us, supporting us, believing in the textbook and
our
voices, and trusting that we will honor the law and our
commitment to
bring the best to faculty and students.
We have seen what types of employment law
problems are most prevalent in the workplace from our
extensive
experience in the classroom and in our research and writing, as
well
as in conducting over the years many employment seminars for
managers, supervisors, business owners, equal employment
opportunity officers, human resources personnel, general
counsels,
and others. We have seen how management most often strays
from
appropriate considerations and gets into avoidable legal trouble,
exposing it to potential increased liability. We came to realize

that
many of the mistakes were based on ignorance rather than
malice.
Often employers simply did not know that a situation was being
handled incorrectly.
Becoming more aware of potential liability does not mean the
employer is not free to make legitimate workplace decisions it
deems
best. It simply means that those decisions are handled
appropriately in
ways that lessen or avoid liability. The problem does not lie in
not
being able to terminate the female who is chronically late for
work
because the employer thinks she will sue for gender
discrimination.
Rather, the challenge lies in doing it in a way that precludes her
from
being able to file a successful gender discrimination claim. It
does not
mean the employer must retain her, despite her failure to
adequately
meet workplace requirements. Rather, it means that the
employer
must make certain the termination is beyond reproach. If the
employee has performed in a way that results in termination,
this
should be documentable and, therefore, defensible. Termination
of the
employee under such circumstances should present no problem,
assuming similarly situated employees consistently have been
treated
the same way. The employer is free to make the management
decisions necessary to run the business, but it simply does so
correctly.

Knowing how to do so correctly does not just happen. It must be
learned. We set out to create a textbook aimed at anyone who
would,
or presently does, manage people. Knowing what is in this book
is a
necessity. For those already in the workplace, your day is filled
with
one awkward situation after another—for which you wish you
had the
answers. For those in school, you will soon be in the workplace,
and in
the not-too-distant future you will likely be in a position
managing
page xv
others. We cannot promise answers to every one of your
questions,
but we can promise that we will provide the information and
basic
considerations in most areas that will help you arrive at an
informed,
reasonable, and defensible decision about which you can feel
more
comfortable. You will not walk away feeling as if you rolled the
dice
when you made a workplace decision, and then wait with
anxiety to
see if the decision will backfire in some way.
In an effort to best inform employers of the reasoning behind
legal
requirements and to provide a basis for making decisions in

“gray
areas,” we often provide background in relevant social or
political
movements, or both, as well as in legislative history and other
relevant
considerations. Law is not created in a vacuum, and this
information
gives the law context so the purpose is more easily understood.
Often
understanding why a law exists can help a manager make the
correct
choices in interpreting the law when making workplace
decisions with
no clear-cut answers. We have found over the years that so few
people really understand what any of this is really about.
They know they are not supposed to discriminate on the
basis of, say, gender, but they don’t always realize (1) when
they are
doing it, and (2) why the law prohibits it. Understanding the
background behind the law can give extremely important insight
into
areas that help with both of these issues and allow the manager
to
make better decisions, particularly where no clear-cut answer
may be
apparent.
Legal cases are used to illustrate important concepts; however,
we
realize that it is the managerial aspects of the concepts with
which you
must deal. Therefore, we took great pains to try to rid the cases
of
unnecessary “legalese” and procedural matters that would be
more
relevant to a lawyer or law student. We also follow each case

with
questions designed to aid in thinking critically about the issues
involved from an employer’s standpoint, rather than from a
purely
legal standpoint. We understand that how employers make their
decisions has a great impact on the decisions made. Therefore,
our
case-end questions are designed as critical-thinking questions to
get
the student to go beyond the legal concepts and think critically
about
management issues. This process of learning to analyze and
think
page xvi
critically about issues from different points of view will greatly
enhance
students’ decision-making abilities as future managers or
business
owners. Addressing the issues in the way they are likely to arise
in life
greatly enhances that ability. You may wonder why we ask
questions
such as whether you agree with the court’s decision or what you
would do in the situation. This is important in getting you to
think about
facts from your perspective as a potential manager or
supervisor. Your
thoughts matter just as much as anyone else’s and you should
begin
to think like a manager if you are going to be one. Nothing
magic
happens once you step into the workplace. You bring an awful

lot of
your own thoughts, preconceived notions, and prejudgments
with you.
Sometimes these are at odds with the law, which can lead to
liability
for the employer. The questions are a way to ferret out your
own
thoughts, to explore what is in your own head that can serve as
the
basis of decisions you make in the workplace. You can then
make any
needed adjustments to avoid liability.
It is one thing to know that the law prohibits gender
discrimination in
employment. It is quite another to recognize such discrimination
when
it occurs and govern oneself accordingly. For instance, a female
employee says she cannot use a “filthy” toilet, which is the only
one at
the work site. The employer can dismiss the complaint and tell
the
employee she must use the toilet, and perhaps later be held
liable for
gender discrimination. Or the employer can think of what
implications
this may have, given that this is a female employee essentially
being
denied a right that male employees have in access to a usable
toilet.
The employer then realizes there may be a problem and is more
likely
to make the better decision.
This seemingly unlikely scenario is based on an actual case,
which

you will later read. It is a great example of how simple but
unexpected
decisions can create liability in surprising ways. Knowing the
background and intent of a law often can help in situations
where the
answer to the problem may not be readily apparent. Including
the law
in your thinking can help the thought process for making well -
founded
decisions.
You may notice that, while many of our cases are
extremely timely and have a “ripped from the headlines”
feel to them, others are somewhat older. There are two reasons
why
we include those older cases. First, some of them are called
“seminal”
cases that created the foundation for all of the legal decisions
that
came afterwards, so you need to be aware of them. The other
reason
is much more practical. Because our goal is to teach you to
avoid
liability in the workplace, part of our means of reaching the
goal is to
use fact patterns that we think do the best job of illustrating
certain
points. Most legal texts try to bring you only the latest cases. Of
course, we also do that; but our primary goal is to use those
cases
that we think best illustrate our point. The clearest, most
illustrative
fact pattern might be an older case rather than a newer one. We

will
not include newer cases just because they are new. We provide
cases
that best illustrate our points for you and, if they happen to be
older
cases that are still good law, we will use them. We are
interested in
facts that will help you learn what you need to know, rather
than case
dates. We look at the cases that have come out between editions
and,
if none do the job of illustrating our point better, we go with
what is
best geared to show you how to think through an issue.
We have made the decision to limit the number of cases in each
chapter to between three and five. Most chapters have three or
four.
Even though the subject matter from chapter to chapter may
lend itself
to different numbers of cases, we decided to try for consistency.
Hopefully, the carefully chosen cases will still accomplish our
purpose.
We also have included endnotes and boxed items from easily
accessible media sources that you come across every day, such
as
People magazine, The New York Times, The Wall Street
Journal, and
USA Today. The intent is to demonstrate how the matters
discussed
are interesting and integrated into everyday life, yet they can
have
serious repercussions for employers. In earlier editions, we
opted for
reading continuity and thus did not include a lot of our research

material as endnotes. We have made the conscious decision to
include more sources as endnotes. Hopefully, what is lost in
seeing
the endnote callout as you read will be balanced out with the
fact that
you now have the resources to do further investigation on your
own
since you now have the resources to do so.
Much of today’s litigation results from workplace decisions
arising
page xvii
from unfortunate ideas about various groups and from lack of
awareness about what may result in litigation. We do not want
to take
away anyone’s right to think whatever he or she wants about
whomever he or she wants, but we do want to teach that those
thoughts may result in legal trouble when they are acted on.
Something new and innovative must be done if we are to break
the
cycle of insensitivity and myopia that results in spiraling
numbers of
unnecessary workplace lawsuits. Part of breaking this cycle is
using
language and terminology that more accurately reflects those
considerations. We therefore, in writing the text, made a rather
unorthodox move and took the offensive, creating a path, rather
than
following one.
For instance, the term sex is generally used in this text to mean

sex
only in a purely sexual sense—which means we do not use it
very
much. The term gender is used to distinguish males
from females. With the increasing use of sexual
harassment as a cause of action, it became confusing to continue
to
speak of sex as meaning gender, particularly when it adds to the
confusion to understand that sex need not be present in a sexual
harassment claim but gender differences are required. For
instance, to
say that a claim must be based on “a difference in treatment
based on
sex” leaves it unclear as to whether it means gender or sexual
activity.
Since it actually means gender, we have made such
clarifications.
Also, use of the term sex in connection with gender
discrimination
cases, the majority of which are brought by women, continues to
inject
sexuality into the equation of women and work. This, in turn,
contributes to keeping women and sexuality connected in an
inappropriate setting (employment). Further, it does so at a time
when
there is an attempt to decrease such connections and, instead,
concentrate on the applicant’s qualifications for the job. The
term is
also confusing when a growing number of workplace
discrimination
claims have been brought by transgenders, for whom gender,
sex,
and sexuality intersect, and can cause confusion if language is
not
intentional, accurate, conscious, and thoughtful.

We are utterly delighted that for the first time in the 20-year
history
of the text, we are comfortably using the terms “homosexual”
and
page xviii
“sexual orientation.” We are ecstatic that society has come to a
place
where the negative connotations these terms once had are not as
prevalent as they once were. In our last edition, we wrote the
following:
So, too, with the term homosexuality. In this text, the term
affinity
orientation is used instead. The traditional term emphasizes, for
one
group and not others, the highly personal yet generally
irrelevant
issue of the employee’s sexuality. The use of the term sets up
those
within that group for consideration as different (usually
interpreted to
be “less than”), when they may well be qualified for the job and
otherwise acceptable. With sexuality being highlighted in
referring to
them, it becomes difficult to think of them in any other light.
The
term also continues to pander to the historically more
sensational or
titillating aspects of the applicant’s personal life and uses it to
color
her or his entire life when all that should be of interest is ability
to do

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