Virginia Pollard worked as a cashier and clerk for TeIDy’s 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 TeIDy’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, TeIDy 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 TeIDy 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 TeIDy’s rules against smoking, horseplay, foul language, and sexual harassment, and often indulged in such behaviors himself. TeIDy’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.ReportTeIDysafely.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 TeIDy’s reasons for firing her were pretext, and awarded her back wages and damages. TeIDy’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 TeIDy 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 TeIDy had been right to discipline Pollard, but they ordered TeIDy’s to reinstate Pollard to her old position. Pollard appealed to the New Jersey Court of Appeals and refused to accept her job back.
You are an independent Human Resources Consultant that was hired by TeIDy’s Supplies to consult on this case during the appeal.
K E Y P L A Y E R S
You Decide ES
Review the Virginia Pollard case information located at the beginning of this project: You Decide ES. (If you click here, you will return to the face-sheet of the project area. To return to this page, click the Begin button again. You can do this all week.) To do well on this project, study the readings for this week and consider the work we did in Week 5. You may want to do some outside research for this project as well, reviewing recent case law on discrimination and harassment and including that in your answers to the project. Do not discuss this project with your classmates. You should do the work on your own. This project is “pooled,” meaning your classmates may have different questions than you do.
This project is worth 100 points toward your final grade. You can access this area all week and continue updating your answers until the end of the week – be sure to hit “save answers” before leaving each time! When you are done working on the project, hit “Submit for grade,” and then it will be available in the gradebook for grading.
Your role in answering the questions:
You are the independent human resources consultant hired by TeIDy’s Supplies to help explain to the company what the case against them will entail. You have gleaned the facts from your investigations into the situation to date. You have never talked with Virginia Pollard. The case is currently in the appeals stage and the company executives have some questions for you. Answer them using the most recent legal information you can find.
1. TeIDy’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 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 TeIDy’s case that impact liability. Include in the memo your suggested “offer of settlement” to Virginia. Back up your offer using your analysis of the case against TeIDy’s. (Points : 30)
2. The circuit court overturned the decision of the NJ Human Rights Commission that 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 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. 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 TeIDy’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 TeIDy’s in this case? Why or why not? (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)
(Points : 40)
3. The CEO asks you to review the sexual harassment policy currently in place that Virginia signed. He wants you to provide him with suggestions for changes to it. Review the policy and give three recommendations for changes, enhancements, and ideas for making the policy stronger. Include your reasons for these suggestions. If you find information online for making these changes, include citations and/or links to that information. Explain how your suggestions may have protected TeIDy’s in this case. Support these recommendations with current case law. (Points : 20)
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)
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