You Decide Virginia Pollard

You Decide Project Virginia Pollard worked as a cashier and clerk for Teddy Supplies, a family-owned chain of film production equipment supply stores in Pennsylvania and New Jersey. During a routine performance evaluation, Virginia’s supervisor at Teddy’s complained that she made too many personal phone calls when she worked in the West Orange store. The supervisor noted this on Virginia’s annual review, and warned her to keep personal calls to a bare minimum while at work.

Soon thereafter, Teddy transferred Pollard to guard film equipment in the main warehouse behind the storefront; Virginia couldn’t make personal calls there, and her work became exemplary. Her performance evaluation three months after her transfer was “meeting expectations” with no negative comments. Virginia Pollard was the only woman working in the warehouse, and she was often the victim of pranks perpetrated by her six male colleagues.

Her co-workers taped her drawers shut, locked her out of the guard shack she sat in to watch the inventory, filled the guard shack with trash, and backed a forklift up to the door and made it backfire in her ear. One day a Teddy delivery driver sat in Pollard’s chair and, when she tried to push him out of it, he bent her over his lap and spanked her. Pollard’s new supervisor, Steve King, rarely enforced Teddy’s rules against smoking, horseplay, foul language, and sexual harassment, and often indulged in such behaviors himself.

Teddy’s had a written sexual harassment policy which included a method for employees to report sexual harassment – the method included filing a complaint with the direct supervisor unless the direct supervisor was the perpetrator. In that event, the employee was to file the complaint online at www. ReportTeddysafely. com. The form for reporting was a one page document. A copy of the policy which Virginia Pollard signed is located here.

The policy specifically states, “In the event of a violation of this policy, employees should report the violation to their direct supervisor, unless doing so would put the employee at risk of further discrimination or harassment. In that case, the employee should report using the company website form which will submit the incident to Human Resources. ” Pollard never filed a complaint with Steve King, her supervisor; she also did not file a complaint at the website, although she claimed she told King in July 2008 that she felt she was being “picked on” by the guys she worked with.

She claims Steve King told her to “grow some balls” and to “get over herself. ” She testified during the NJ Human Rights Commission hearing that she tried to file an anonymous complaint but the website wasn’t working the day she tried to do so. In August of 2008, King and the other warehouse workers put a sign on a truck that read “HARDHAT REQUIRED/BRA OPTIONAL. ” King and another employee called Pollard over to look at the sign and encouraged her to do as it said. She refused and tried to walk away.

King promised not to report her to management, whereupon she lifted one side of her shirt in the back and exposed part of her bra on her backside. Upper management learned of the incident that October by a co-worker who filed an anonymous complaint online. After a brief investigation, Pollard was fired for exposing her bra. None of the men were disciplined. A man replaced Pollard in the guard shack. That November, Pollard filed a charge of sex discrimination with the New Jersey Commission on Human Rights.

The Commission found that Pollard had been the victim of sex discrimination and that Teddy’s reasons for firing her were pretext, and awarded her back wages and damages. Teddy’s appealed to the circuit court, including in their case that Pollard had committed several infractions, including participating in the spanking incident. They reported that Pollard had failed to report any sexual harassment and included a copy of their sexual harassment policy as part of their defense case.

The Circuit Court found that Teddy did have good reason to discipline Pollard but that firing her was in fact disparate treatment when compared with the utter lack of discipline given to King. The circuit court reversed the Commission’s award of damages because it believed that Teddy had been right to discipline Pollard, but they ordered Teddy’s to reinstate Pollard to her old position. Pollard appealed to the New Jersey Court of Appeals and refused to accept her job back. Sexual Harassment Policy: Teddy’s Supplies Sexual Harassment Policy All employees of Teddy’s Supplies are required to read and follow this policy.

This policy was implemented on January 1, 2002, and is in effect until further notice. Scope of Policy This policy prohibits any illegal discrimination or harassment of any employee by another employee, co-worker, supervisor, or vendor. All employees are entitled to a harassment and discrimination free environment. The company has a “zero-tolerance” policy with respect to harassment or discrimination. A safe work environment is the goal of Teddy’s Supplies. Responsibility and Reporting structure All employees are responsible for following this policy.

In the event of a violation of this policy, employees should report the violation to their direct supervisor, unless doing so would put the employee at risk of further discrimination or harassment. In that case, the employee should report using the company website form which will submit the incident to Human Resources. Employees have the option of anonymously reporting incidents, but doing so does not provide the employee with any protection under the law. (Access the reporting form on the benefits page of the intranet. Behavior Banned All illegal, discriminatory, or harassing behavior is prohibited. Discipline invoked Employees found to violate this policy may be terminated, suspended from work without pay, or transferred. This document will be considered the “warning” in the event of termination. No other warning is required. In the event a suspension or transference is a result of a violation of this policy, any 2nd offense will be met with immediate dismissal. In the event a complaint against an employee is made, the employee will have the right of defense at a hearing prior to termination.

This hearing will be held by the CEO and Director of HR, or by a committee created at their request or direction. No retaliation Employees will not be retaliated against making for valid complaints. In the event it is determined that an employee has filed a fraudulent complaint, this will be grounds for disciplinary action, including suspension without pay, transference or termination. Limitation period All complaints for violations of this policy must be made within 90 days of the occurrence of the behavior or they are waived under this policy.

Signed: 2004 Virginia Pollard Date: 8-12- You Decide Question #1: Teddy’s Supplies’ CEO has asked you to advise him on the facts of the case, and your opinion of their potential liability. He wants to settle the case. Write a memo to him which states your view of whether the company is exposed to liability on all issues you feel are in play. Include in your memo any laws which apply and any precedential cases either for or against Teddy’s case which impact liability. Include in the memo your suggested “offer of settlement” to Virginia.

Back up your offer using your analysis of the case against Teddy’s. (Points: 30) As an advisor, I would inform Teddy’s Supplies CEO the situation is Virginia Pollard, the only woman working in the warehouse, is filing charges against the company for sexual harassment. The fact of the matter is the employees in the warehouse are guilty of disparate treatment towards Virginia Pollard as warehouse workers put a sign on a truck that read “HARDHAT REQUIRED/BRA OPTIONAL” along with other discriminatory actions (pranks, spanking incident, etc. ).

However, per the Sexual Harassment Policy implemented by the company, Virginia did not ever file sexual harassment complaints when given the opportunity to. As a conclusion, I believe Teddy’s Supplies as a company, is responsible for the hostile work environment created around Virginia Pollard; my advice would be to offer a settlement to Virginia Pollard in the amount of $5,000. I believe the $5,000 is a sufficient settlement because according to Burlington Industries v. Kimberly Ellerth case, I believe that Virginia Pollard was been a victim of a hostile work environment.

You Decide Question #2: The Circuit Court overturned the decision of the NJ Human Rights Commission which had found that Pollard was the victim of Sexual Harassment and disparate treatment. Please answer these questions: A. Define sexual harassment, including both quid pro quo and hostile environment harassment. Which type(s) do you feel Pollard was a victim of (if either. ) Provide law or a case to support your position. If you feel Pollard was not a victim of harassment in this case, explain why you feel that way, and provide law or a case to support your position. (10 points) B.

Name an appellate court case where an employer was found liable for either quid pro quo or hostile environment sexual harassment. Describe the facts of the case, and the decision the court came to in the case. Explain whether you think that case applies to Pollard’s case (why or why not) and whether you would want to use this case in Teddy’s favor or whether Pollard may use it in her favor. Include the citation to the case and a link to it online. (10 points) C. Do you agree that Pollard was disparately treated? Why or why not? In your answer, define disparate treatment. 10 points. ) D. Does the existence of a sexual harassment policy provide a defense to Teddy’s in this case? Why or why not? (Include the name and citation of at least two federal or state sexual harassment case(s) which provide precedential support to your defense statement. ) (10 points. ) (Points: 40) A) Sexual harassment is the act of inappropriate actions insinuating sexual conduct. The two types of sexual harassment are quid pro quo and hostile work environment. Quid pro quo is the action of getting something for giving something of value.

Hostile work environment is when an employer engages in inappropriate behavior making the working place not up to reasonable standard. According to Burlington Industries v. Kimberly Ellerth, I believe that Virginia Pollard was a victim of a hostile work environment. In this case the Supreme Court ruled “that workers can still bring sexual harassment cases against employers even if the harassment is not reported. ” B) A court case when the employer was found liable for sexual harassment is the Burlington Industries v. Kimberly Ellerth. In this case, Kimberly described her experiences at work as feeling “humiliated and embarrassed”.

Kimberly also claimed to be an emotional and mental victim of sexual harassment by her supervisor but never reported the incidents to anyone at work. This case applies to Virginia Pollard’s case and I would want to use this case in her favor because she has been the victim to humiliation when her coworker “bent her over his lap and spanked her”. This case applies directly to Virginia Pollard because even though she never filed a complaint with her supervisor Steve King, nor did she file a complaint at the website online, she “can still bring sexual harassment cases against employers even if the harassment is not reported”. http://www. law. cornell. edu/supct/html/97-569. ZO. html) C) I do agree that Pollard was disparately treated. Disparate treatment is mistreatment of employees differently because of their membership in a certain protected class (Race, Color, Religion, National Origin, Sex). In this case, Pollard’s employees treated her with discriminatory conduct because she was the only woman working in the warehouse when the sign posted on a truck read “HARDHAT REQUIRED/BRA OPTIONAL. ” This sign discriminated Virginia Pollard because she was the only woman in the warehouse amongst six other employees.

D) The existence of sexual harassment policy does not provide a defense to Teddy’s in this case. Even though Teddy’s policy provides the opportunity for employees to report misconduct, it does not dismiss the employer from being liable for conduct of employees. Two cases that support this are the Burlington Industries v. Ellerth case and Burrell v. Star Nursery, Inc. Both of these cases state that the employer must be liable for the sexual harassing conduct of their supervisors even if they neither knew nor should have known that the misconduct was occurring.

You Decide Question #3: Review the sexual harassment policy which Teddy’s has in place and which Virginia Pollard signed. Virginia Pollard claims she had planned to make an anonymous complaint but the website allowing that was down on the day she tried to do so. During the Human Rights Commission case, a review of the website statistics shows that Virginia accessed the website for downloading dental coverage forms at least three times during the time frame of the alleged discrimination.

The commission determined that this ability of Teddy’s to track employees’ use of the site was a violation of their anonymity and therefore, refused to consider this information. The circuit court did consider this in their decision. Provide three recommendations to the CEO for a way to ensure that employees in the future can not claim “technical issues” for why they didn’t make a complaint. Explain, in your recommendations, the legal consequences to an employee if they do not utilize the complaint mechanism of the sexual harassment policy.

Support these recommendations with current case law. (Points: 20) Three recommendations I would make to the CEO of Teddy’s to ensure that employees in the future could not claim “technical issues” for why they didn’t make a complaint would be providing alternative options in reporting this matter. The three recommendations I would give to the CEO of Teddy’s would be: 1) Create a drop box/1-800 number/multiple parties employees could contact in order to file their complaints into so anonymity still existed.

The legal consequence to an employee for not utilizing the complaint mechanisms would be negligence. The addition of the additional options juxtaposed with the existing online reporting option gives each employee an additional opportunity to report any sexual harassment cases at the workplace or at home. Similar to Brenneman v. Famous Dave’s of America, the legal consequence to the employee for not reporting events of sexual harassment would be the employer being able to defend themselves from sexual harassment allegations having given the employee almost any opportunity to report this misconduct. ) Implement a periodic harassment training to supervisors and employees to ensure that they know and remember that they must take the appropriate action to avoid sexual harassment law suits. By training the employees and supervisors of this sexual harassment periodically, it constantly reminds them of the differences of appropriate and inappropriate behavior and what actions to take in the instances of misconduct.

In addition to the training, prompt and swift implementation for correction action must be taken to those found guilty of misconduct. Moreover, due to Suders v. Pennsylvania State Police employers should also train their supervisors to know that the burden of proof dismissing them from any liability is also their responsibility in the case a sexual harassment suit. 3) Become more involved in every aspect of the company. Spend time with each department within the company to exercise reasonable care to prevent or correct any harassing behavior.

By doing this, the employer may then claim affirmative defense because a) the company has an effective internal complaint procedure for reporting incidents of workplace harassment, and (b) the employee unreasonably failed to take advantage of that procedure. Upon any misconduct, the legal consequence for the employee not reporting the misconduct would be the employer using affirmative defense to his advantage. You Decide Question #4: How would Pollard’s case be impacted if her replacement had been a female? Would her case be different? Would her damages be different?

Explain your answer. (Points: 10) Pollard’s case could be viewed differently if Pollard’s replacement had been a female, because Teddy’s had initially fired her for exposing her bra. If Pollard had been replaced by another woman, I don’t think it would be viewed as disparate treatment because it would have been just seen as personal misconduct. In addition, if Pollard’s replacement had been a woman, the Circuit Court may have supported Teddy’s discipline to Pollard and still reversed the Commission’s award of damages because it believed that Teddy had been right to discipline Pollard.