1.

Teddy's Supplies' CEO has asked you to advise him on the facts of the case and your
opinion of their potential liability. Write a memo to him that 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 that apply and any precedent cases either for or against Teddy's case that impact liability.
Include your opinion of the "worst case" of damages the company may have to pay to
Virginia. (Points : 30)
Memo
To: Ted Moore, CEO Teddys Supplies
From: Independent HR Consultant
RE: Appeal on Pollard Case
This purpose of this memo is to respond to your request for the facts of the case regarding the
alleged sexual harassment of Virginia Pollard and the potential liability that Teddys could be
facing. More specifically, I feel you should know specifically which liabilities you are exposed
to, the likelihood of being found liable, and the worst case scenario of the damages that may be
awarded to Ms. Pollard. She may argue that there was a violation of Title VII of the Civil Rights
Act of 1964, which prohibits sex discrimination in the workplace this, could also include Ms.
Pollard stating that it was a hostile environment workplace. This is defined as discrimination in
the form of unwelcome verbal and/or physical conduct related to her constitutionally protected
classification. To support this position Ms. Pollard could invoke case Faragaher v. City of Boca
Raton where the court found that ..the supervisors were granted virtually unchecked
authority over subordinates (Faragher v. City of Boca Raton (97-282) 524 U.S. 775 (1998)).
Teddys is liable for the conduct of its employees.
Mr. King created a hostile work environment around Ms. Pollard which included elements of
sexual harassment. This would include any pranks she was the victim of in the warehouse and
the sign posted on a truck that read HARDHAT REQUIRED/BRA OPTIONAL. Mr. King
created an environment where Ms. Pollard could be uncomfortable. The sexual harassment
policy in place at Teddys was violated by Pollards supervisor, Mr. King and his subordinates.
This policy stated that the workplace will have zero-tolerance regarding a safe work
environment and that all types of harassing behavior will not be tolerated. This behavior was
overlooked at the time of Ms. Pollards firing and management. The sexual harassment at hand
includes Mr. King making Ms. Pollard feel pressured to show her bra, the spanking incident, and
Mr. King dismissing Ms. Pollards comment that she felt she was being picked on by the other
employees. Even though she did not file a complaint, the events occurred and Teddys is liable
for the actions of Mr. King and his subordinates.
All damages associated with these liabilities consist of monetary payments to Ms. Pollard along
with a letter of apology from each person who offended Ms. Pollard as well as a letter of apology
from Teddys. The amount of damages could range from thousands of dollars, very easily in the
hundreds of thousands in damages.
2. The NJ Human Rights commission found that Pollard was the victim of sexual harassment and
disparate treatment. Please answer these questions:
a. Provide the most current definition of "sexual harassment," including a definition of quid pro
quo and hostile environment sexual harassment. Name an appellate court case in which 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. Include the citation
to the case and a link to it online. Would the case apply to Pollard's case? Why or why not?
Would you want to use this case in Teddy's favor or Pollards favor?(10 points)
a. Sexual harassment is defined as unwelcome verbal, visual, or physical conduct of a sexual
nature that is severe or pervasive and affects working conditions or creates a hostile work
environment. Quid pro quo harassment occurs when employment, promotion, salary increases,
shift or work assignments, performance expectations or other conditions are made contingent on
sexual favors, usually to an employer, supervisor, or agent of the employer who has the authority
to make decisions about employment actions. It can also be when the rejection of sexual
advances or request for sexual favors result in a loss of a job benefit
(http://www.stopvaw.org/quid_pro_quo_sexual_harassment). Hostile environment sexual
harassment occurs when comments or conduct that are based on sex, race, or other legally
proctected characteristics are unwelcomed and unreasonably interfere with an employees
performance or creates an intimidating, hostile, or offensive work environment.
In Nichols vs. Frank (42 F.3d 503, 512 (9th Cir 1994) the U.S. Postal Service appealed the
decision of the district court of Oregon which found defendant liable of sexual harassment under
Title VII of the Civil Rights Act of 1964. The plaintiff, Terri Nichols, a deaf-mute postal
employee worked the night shift at the post office. The highest level supervisor on duty was the
night-shift supervisor, Ron Francisco. Francisco was the only person at the post office
supervisor who could communicate through sign language with Nichols. Shortly after starting
her night shift position with the post office, Francisco asked her to make some copies of
documents while he had another employee assigned to work her duties on the floor. While in the
copy room together Francisco made sexual advances toward Nichols and demanded she perform
oral sex on him. Nichols was fearful of losing her job, needing it to pay for a newly purchased
home, thus she complied with Francisco. This happened repeatedly with Francisco over a six-
month period. Nichols never sought after any sexual contact with Francisco and was afraid to
tell anyone, including her husband in fears that it would harm her marriage. Nichols tried to
commit suicide and had extensive emotional distress, including depression. Six-months after this
behavior with Francisco had started, Nichols husband filed divorce and Nichols sought two
weeks leave of absence from Francisco. He only approved her request after she performed oral
sex on him again. Nichols filed a complaint with the Postal Service, the EEOC, and the
American Postal Workers Union. She was diagnosed with post-traumatic stress disorder and had
federal disability benefits from April 14, 1987 until December 4, 1989.
(http://www.lexisnexis.com.proxy.devry.edu/hottopics/lnacademic/). The court found in favor of
the plaintiff as she was a victim of quid pro quo sexual harassment by her supervisor, an
employee of the U.S. Postal Service. Nichols receiving federal disability benefits does not
prevent her from receiving an additional monetary award under Title VII. Nichols was properly
awarded an amount equal to the difference between her disability and 100% of her back pay.
This case could be applied to Pollards case in her favor as Nichols did not report the behavior to
any other supervisors within the post office, but is still filing complaints.
b. Explain which form of sexual harassment you suspect the NJ Human Rights commission
found Virginia had been a victim of and why you feel that is the case. 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. I believe that the NJ Human Rights commission found Ms. Pollard was a victim of hostile
environment sexual harassment. This is because there was discrimination in the form of
unwelcome verbal and/or physical conduct related to her. In Burns v. McGregor Electronic
Industries, Inc. (989 F.2d 959; 1993), the court found that Sexual harassment can take place in
many different ways. A female worker need not be propositioned, touched offensively, or
harassed by sexual innuendo -- all of which occurred here. "Intimidation and hostility toward
women because they are women can obviously result from conduct other than explicit sexual
advances." 5 Hall v. Gus Const. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) Ms. Pollard was
fired for exposing her bra. No actions were taken against the others involved in the incidence.
Her coworkers made her feel picked on for the use of the foul language and not knowing what
inappropriate behavior she would be forced to endure every day.
c. Explain what defenses to sexual harassment Teddy's had in this case. (Include the name and
citation of at least two federal or state sexual harassment cases that provide precedent support to
your defense statement.) (10 points)
c. Defenses to sexual harassment cases require that the employer exercise reasonable care to
prevent and correct any sexual or harassing behavior and that the plaintiff employee failed to
take advantage of any preventative or corrective opportunities provided by the employer or to
otherwise avoid harm. In Both Faragher v. City of Boca Raton (111 F.3d 1530 (1997) )and
Burlington Industries v. Ellerth (524 U.S. 742 (1998)), the court held that an employer is subject
to liability for the acts of its supervisors with immediate authority over the employee bringing
the case. However, it was deemed if the employee suffered no tangible employment loss the
employer may raise an affirmative defense to the liability. Teddy did take reasonable care to
prevent and promptly address harassing behaviors by creating and having a sexual harassment
policy in place that every employee is required to sign. In this case, Ms. Pollard did sign the
policy on August 12, 2004. In addition, all employees within Operations, per Tonya Morgan,
VP, are required to attend yearly discrimination training. There were two methods for Ms.
Pollard to report the harassment. The first was on the companys website,
www.ReportTeddysafely.com, since the harassment was from a direct supervisor, she had to
submit it online. She only visited the site once and it was done. It is not unreasonable to expect
that Ms. Pollard visit the site again at a later date to submit her complaint. In addition, Teddys
does not does not discriminate based on gender. Per CEO Ted Moore, Teddys promotes equally
and fairly. Pollard did not report any kind of harassment or hostile environment while employed
at Teddys.
d. What is disparate treatment and why do you think the Human Rights commission found it had
occurred? Do you agree with this decision? (10 points)
d. Disparate treatment is a form of discrimination in which members of the different races or
sexes are treated differently. The Human Rights commission found it occurred because she was
treated differently than her all male coworkers. She was often the target of practical jokes, some
of them sexual in nature, such as the sign on the truck advising bra optional that forced her to
show her bra. She was fired after that incident for showing her backside, but the other
employees, who were all male, were not disciplined for inciting her to do it in the first place
going against company policy. I do agree with the decision of the commission. She was treated
differently because she is a woman.
3. Review the sexual harassment policy that Teddy's has in place and that 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)
In order to ensure that an employee or former employee will not be able to claim technical issues
as a reason to not file a complaint, Teddys should: 1. There should be at least two different
methods for employees to file complaints one of which should be by phone to the human
resources department. 2. Ensure that employees at all levels of the organization are receiving
training to review the sexual harassment policy. Keep records of this training and have the
employee sign and date stating they attended and understood the training. This should be done
on a yearly basis and all records should be maintained by the Human Resources department. 3.
The website should be checked on a daily basis to determine if there were any issues. All checks
of the system and any downtime should be logged automatically and saved on a report and saved
indefinitely. Should the employee be unable to file a complaint to prevent or corrective
opportunities provided by the employer, when given multiple ways to file and anonymity if
he/she so chooses, the company will not be held liable as held up by the court in Faragher v. City
of Boca Raton, 118 S. Ct. 2275 (1998), the employer is reasonably free of vicarious liability for
the actions of its workers.
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)
Had Ms. Pollard been replaced by a female instead of a male, her case may have changed
slightly. There are both compensatory and punitive damages that could be awarded in cases.
The compensatory damages are awarded to compensate for some sort of loss, this would
encompass pain and suffering and also refers to non-monetary losses. Punitive damages are
monetary and are levied to punish the defendant for wronging the plaintiff. These damages are
designed to deter the defendant from committing the same wrong in the future. Regardless of
who is hired after Ms. Pollard was fired, the compensatory damages cannot change because the
damages were already incurred. The case would remain unchanged in this regard. However, the
court may decide that punitive damages are levied against Teddy in order to prevent a similar
situation from happening again due to a female working in the warehouse again. The punitive
damages will help to ensure that Teddys is enforcing and guiding employees through what is
acceptable workplace behavior and what is not.