Richard Lester
August 8, 2015
Professor Goldsen
Week 5 “You Decide”

Question 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 law. d. The worst-case damages that could be imposed.

MEMO
To: Teddy’s Supplies CEO

It has come to our attention that there is a big problem in the warehouse near the West Orange store. We have a heard a lot of claims of horseplay and sexual harassment on company time. We will list some of the incidents in this memo and will suggest upper management step in and fix this problem so there will be now lawsuit file against Teddy’ Supplies. * Taping co-workers drawer closed * Locking co-workers out of guard shack * Having co-workers file trash * Backing up a forklift to a door and having it back fire in a co workers ear * Delivery drive spanking one of the warehouse guards * Supervisor posting a sign of the wall “Hardhats required/Bra optional” * Supervisor making worker show their bra

These incidents all started in the beginning of 2008 and should not be happening in the work place. The company at this time is potentially liable for all damages to this employee. Under law Civil Rights Act of 1964. (EEOC, 1964)

Teddy’s Supplies is liability for harassment if a supervisor that results in a negative employment action such as termination, failure to promote of hire, and loss of wages. Also, if a supervisor harassment result in a hostile work environment, Teddy’s Supplies is liable.

Worst-case the company could have to pay out damages to the victim, meaning:
Compensatory damages such as loss of employment ability, loss of wages, medical expenses, and other economic misfortune as a result of the harassment.
Emotional damages such as intentional infliction of emotional distress. The jury will consider all facts and circumstances in awarding emotional damages.
Punitive damages when the harasser’s misconduct is particularly egregious, outrageous, malicious, or otherwise shocks the jury’s conscious. Punitive damages may also include reasonable attorney’s fees. (Cheung, 2015)

Please be advised and take note.

Question 2 - How does Title VII apply to this fact scenario?

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following: * The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. * The harasser can be the victim's supervisor, an agent of the employer, and a supervisor in another area, a co-worker, or a non-employee. * The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. * Unlawful sexual harassment may occur without economic injury to or discharge of the victim. * The harasser's conduct must be unwelcome.
It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Question 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 names, citations, facts, and decisions of those cases.
This mean sexual harassment or any harassment will not be tolerated!

There are two cases that have to do with sexual harassment and any harassment.
The first case is Faragher v. City of Boca Raton (1998). The citation is Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. This case has two supervisor sexually harassing their employees. The court held that "an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim.

Another cases are Burlington Industries v. Kimberly Ellerth. The citation for this case is Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. This case was about a worker that was sexually harassed over a course of 3 years. Her supervisor harassed her and told her that her job would be a lot easier if she would just loosen up. Even though, the employee was no longer working for the company that the company was liable for all damages. The employee never filed a complaint because she thought it would hurt her career. She did say something in a conversation to her supervisor but it was a meaningless conversation. (Legal Information Institute, 1998)

Question 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.

If the website is down there are a couple of option for the person that is going to make a complaint. 1. There should be a 800 number that an employee can call to make an anonymous complaint. This 800 number will advise the employee to follow some steps and then make a log of all incidents. This will protect the person from any backlash. 2. Second the person could write it in a letter and mail it to the HR office. Please make sure the employee makes a copy for her records. 3. The person can write an email and send it to HR Internet email box. If the person want to be anonymous. Please make up a meaningless email and send from that email.

It is our recommendation that the company starts up a 800 number that can be called at any time. The 800 number can go through another business or it can be located in the HR office. But there has to be two people in the office 24 hours a day. This will keep everyone accountable and give the employees enough free will to call whenever they want. Also, this will protect Teddy’s Supplies from any fall out. If Teddy’s Supplies offer all possible solution then the out come will be better for the company.
But Teddy’s first concern should be its employee’s safety.

Question 5 - Would Pollard’s case is affected if her replacement was female? If so, how? If not, why not? Explain.

Pollard’s case might have more merit if her replacement was a female because the new employee might have a lot of more cases that could be used in her case. But then again, if the new employee didn’t want to stand up for herself then it would not make any difference.
If someone is sexually harassing another co-worker they have done it before and gotten away with it. I believe they will keep doing it until someone tells them to stop. I also believe that once they are stopped they might backlash on that employee that stopped them.

After reading a article in the New York Times , titled Sexual Harassment: It’s About Power, No Lust. I am starting to think that the title is wrong. I understand men want to power to control women but also I am thinking that men don’t know any better. Example;

In one scenario, a woman gets a job teaching at a university and her department chairman, a man, invites her to lunch to discuss her research. At lunch he never mentions her research, but instead delves into her personal life. After a few such lunches he invites her to dinner and then for drinks. While they are having drinks, he tries to fondle her.
"Most of the women said that sexual harassment started at the first lunch, when he talked about her private life instead of her work," said Dr. Paludi. "Most of the men said that sexual harassment began at the point he fondled her." (Goleman, 1991)

Men and women have a very different idea what sexual harassment is and in order to make an even playing field at work and in every employees personal life. There needs to be a line that should never be crossed. But then again what if two people like each other enough to start dating. Then where does the sexual harassment start and end?

The rule of sexual harassment or any harassment is not to do it! In order for that to happen they needs to be a class every year on sexual harassment. Not just a program to watch on the Internet.

Reference:

1. http://www.nytimes.com/1991/10/22/science/sexual-harassment-it-s-about-power-not-lust.html?pagewanted=2

2. http://www.legalmatch.com/law-library/article/damages-in-sexual-harassment-cases.html#sthash.woDUaHZj.dpuf

3. https://www.law.cornell.edu/supct/html/97-569.ZS.html

4. https://www.law.cornell.edu/supct/html/97-282.ZO.html