Virginia Pollard worked as a cashier and clerk for Teddy'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 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.
You are an independent Human Resources Consultant that was hired by Teddy's Supplies to consult on this case during the appeal.
1. Francena Phillips: Cashier
2. Ted Moore: CEO and founder
3. Ms. Wilson: Systems Inc. President
Q1. Write a memo to the Teddy's Supplies CEO advising him of the following:
a. The case facts
b. The decisions/proceedings to date
c. The company's potential for liability, and under what laws.
d. The worst-case damages that could be imposed.
Q2. How does Title VII apply to this fact scenario?
Q3. Research and support your answer with two appellate level (including Supreme Court) U.S. cases that discuss sexual harassment and Title VII, and pertain to this case. Provide the case names, citations, facts, and decisions of those cases.
Q4. Review Teddy's sexual harassment policy that Virginia Pollard signed. Virginia tried to make an anonymous complaint, but the website was down that day. During the Human Rights Commission case, a review of the website statistics showed that Virginia accessed the website for downloading dental coverage forms at least three times during the time-frame of the alleged discrimination, but did not try to access the complaint area. The commission determined that Teddy's ability to track employees' website use violated privacy rights, and refused to consider this information. Provide three recommendations to the CEO for a way to ensure that future employees cannot claim "technical issues" for not filing 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.
Q5. Would Pollard's case be affected if her replacement was female? If so, how? If not, why not? Explain. (10 points)