Week 5 Assignment – Agency and Discrimination Law - You Decide
Keller Graduate School of Management of Devry University
MGMT 520 – Legal, Political and Ethical Dimensions of Business
Michael Carr
7th June 2015
1. 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.
Answer:
2. How does Title VII apply to this fact scenario?
Answer:
3. 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 …show more content…
names, citations, facts, and decisions of those cases.
Answer:
In this particular case, Pollard is a victim of a hostile work environment sexual harassment.
Based on the given facts, she was the subject of jokes in her work place as she was being picked on based on her gender. Since she was the only woman in her department, the male employees subject her to cruel and mean jokes on several occasion when other workers placed a sign on a truck that stated "Hardhat Required/Bra Optional”. This is clearly an illustration that she is working in a hostile environment since the repeated jokes made on her gender has created an intimidating place of work. The case of Meritor Savings Bank v. Vinson is applicable to Pollard where the Supreme Court ruled that hostile work environment sex discrimination is an actionable wrong under Title VII. The fact that the Vice President of the bank made sexual advances against complainant created a hostile work environment and is a form of a sexual harassment covered by Title VII of the Civil Rights Act of 1964. The severe and pervasive conduct of the vice president who repeated sexually abused on the victim in exchange for sexual favors at the office qualify the acts as punishable under Title VII. Here, the acts of the Teddy’s workers against Pollard constitute Hostile Work Environment (HWE) sexual harassment through the vulgar sexual jokes and
teasing
4. 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.
Answer:
I would like to list down the following three things that I would suggest should be given to the CEO of Teddy’s Supplies that will form part of the company’s anti-harassment policies:
First is to enact an effective complaint procedure. This procedure is considered efficient when there is an appropriate response by management is taken when there is a complaint filed by one of its workers. There must be a complete investigation of the complaints and further action must be taken by management team to correct all offensive conduct in a timely manner. The employer should be able to take reasonable actions to correct and prevent the harassment in a timely manner.
Second, train the employees to use reasonable care. The employee is expected to take reasonable care by making a good faith effort to avoid the harm of harassment and shall use the internal complaint procedure in a prompt and timely manner in order to address the issue right away. The failure to bring up the issue shall only be considered as reasonable if the employee believes that the complaint mechanism shall entail a risk of retaliation.
Third one is to conduct a training program that will raise the sexual harassment awareness inside the work place. The training shall include race and national origin discrimination to be able to establish good faith on the part of the employer to prevent all forms of harassment inside the office. Training avoidance will lead to serious financial and ethical liabilities towards to the company. Semiannual, mandatory tests related to the sexual harassment and consequences of such, should also be established, as employees have a tendency to forget companies’ policies. (SSA requires all employees to take semiannual tests related to the social security numbers, identity theft, and applications).
Aside from the three recommendations, Teddy’s Supplies must also establish a policy informing the workers that it will be relieved from liability if the employee failed to report any incident of harassment to his or her immediate superior. In the case of Landrau Romero vs. Carribeans Restaurants, Inc., the Court dismissed the sexual-harassment claim of the employee since the employee receipt a copy of the sexual harassment form and acknowledged receipt of it. The failure of the employee to inform anyone of the alleged harassment, including the fact of failure to indicate it in the resignation letter barred him from his claim.
In a similar case of Montero vs. AGCO Group, involving analogous facts, the employer avoided any liability by establishing that there is an existing anti-sexual harassment policy that is implemented by the company, but the employee unreasonably failed to make use of the policy. Base on the facts of the case, the court dismissed the claim of a former warehouse employee for sexual harassment since the employer is fully aware that there is an existing anti-sexual harassment policy in place. Hence, it the employee failure to make use of the procedure, and waited for 2 years before reporting the supervisor’s conduct, such employee shall be barred from filing his or her claim.
In this given case, Pollard failed to immediately report the harassment incident to her superior even if she knew there was a sexual harassment policy in place. Hence, in order to avoid such incidents in the future, the employer must be able to inform the employees in their policy that failure to immediate report any incident of harassment shall bar the employee from filing a claim.
Basis for Recommendation:
The above mentioned recommendations are based on the law on Affirmative Defense, which states that when the supervisor’s behavior is offensive, yet it does not result in tangible action, the employer may avoid liability by being able to prove that they exercised reasonable care for the prevention of the harassment and that they took prompt actions for correcting the harassment after it occurred. This law also requires that the victim must have failed to take advantage of the corrective measures that the employer provided.
5. Would Pollard’s case be affected if her replacement was female? If so, how? If not, why not?
Answer:
In the event that a female employee is hired as the replacement of Pollard, the case will still be considered as a form of hostile work environment under Title VII. In fact disparate treatment was committed by her employer during her termination. Her damages would remain the same but the credibility of her case will depend on the new female employee’s treatment in Teddy’s Supplies and her testimony in the court of law. Under the law, any employee who believes that his or her employment rights have been violated can file a claim for sexual harassment before the EEOC. In the case of Pollard, even if her replacement was either a male or a female, it cannot be denied that harassment existed. The US EEOC grants compensatory and punitive damages where intentional discrimination is found.
The purpose of the Title VII is to afford equal opportunities for all employees who have been discriminated by their employers by reason of race, color, religion, sex, age, national origin or genetic information. On the part of the EEOC, it shall award the same amount of damages after the investigation and resolution of the charges of employment discrimination filed by any employee, applicant and union member on the basis of gender harassment. Under the EEOC, when it is established, the victim of discrimination will be reverted back in the same position that he or she would have been as if the discrimination did not take place. The employer shall be mandated to stop its discriminatory practices and initiate measures to prevent discrimination to happen again in the future.
As part of the remedies of Pollard, who is a victim of discrimination, she shall be allowed to recover attorney 's fees, damages and court expenses. The EEOC also grants liquidated damages to punish any malicious or reckless act of discrimination. The computation for the amount of liquidated damages that will be awarded to Miss Pollard shall be equivalent to the amount of back wages that shall be granted to her by the court. Hence, regardless of whether Pollard’s replacement is a male or a female, once discrimination is established, the amount of damages granted to her will still be the same.
References
https://www.federalregister.gov/articles/2012/01/27/2012-1785/sexual-assault-prevention-and-response-sapr-program#p-14 http://hrdailyadvisor.blr.com/archive/2006/10/24/Sexual_harassment_EEOC_lawsuits_judgments.aspx http://www.leagle.com/xmlResult.aspx?xmldoc=199819914FSupp2d185_1180.xml&docbase=CSLWAR2-1986-2006 http://openjurist.org/192/f3d/856/carrie-ann-montero-v-agco-corporation-glenn-carpenter-russ-newmann
http://homepages.ius.edu/LCHRISTI/Journal%20of%20emply/sexual%20Harassment%20-%20Kass.pdf