In response to the request on potential liability to the sexual harassment case brought by Virginia Pollard, the company is vicariously liable for the conduct of its employees even though there is a sexual harassment policy in place. Virginia had become a victim of a hostile work environment supported by a supervisor with immediate authority over the employee. Pollard was working in a very stressful environment in which she (being the only female) was a minority being subjected to inappropriate language and other unwanted and uninvited behavior. Pollard was humiliated on a daily basis (i.e. pranks involving taping her drawers shut, locking her out of the guard shack, having a forklift backing up to the guard shack and backfiring into her ear) and also upset with the lack of support from her manager.
In one incident Mr. 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. This clearly indicates that Mr. King had knowledge of the harassment. Mr. King’s conduct was sufficiently serious to alter the conditions of Ms. Pollard’s employment and constitute an abusive working environment. Teddy’s Supplies can be held liable for the harassment of its supervisory employees because the harassment was pervasive enough to support an inference that the employer had "knowledge, or constructive knowledge" of it; under traditional agency principles Mr. King and the other male workers were acting as the agents for Teddy’s Supplies when they committed the harassing acts.
Two recent Supreme Court cases have set forth a new test for determining when an employer is vicariously liable for a hostile work environment created by a supervisor. In Burlington Industries v. Ellerth, and Faragher v. Boca Raton, the Supreme Court held that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee.” The record establishes that Mr. King was Ms. Pollard’s supervisor and that he had immediate or successively higher authority over her.

If Ms. Pollard files a claim with the EEOC and if they agree with her assertion of harassment, she can then sue for lost wages, benefits, reinstatement, and attorneys' fees. Compensatory damages (damages for wages and emotional distress) are "capped" by Title VII and the amount allowed per employee will vary depending on the size of the employer. In the case of Smith vs. Magnus, the court ruled in favor of the plaintiff, Ms. Debbie Smith and awarded compensatory damages for emotional distress, lost future fringe benefits and all attorney fees. The monetary amount can be quite substantial and we should work towards a quick solution to avoid aggravating this situation further.
However, in defense we can show that reasonable care to prevent and promptly correct any sexually harassing behavior was used, and that Virginia failed to take advantage of any preventive or corrective opportunities provided by Teddy’s or to avoid harm otherwise. Virginia was aware of the policy, as there is a signed copy in her file, acknowledging its existence, however, she did not submit a written notice of the events nor did she tell anyone of the events. Pollard did claim to have attempted to talk to her manager, Mr. King on at least one occasion but since he was the perpetrator of the harassment, his reply was degrading and insulting. It was his duty to insure that all employees reporting to him are working in an environment free of discrimination and harassment. Even though she did not document the events, we do know that at least some of the events did take place since there was an anonymous complaint filed against Ms. Pollard for exposing her bra. This complaint led to Ms. Pollard being terminated with no disciplinary action taken against Mr. King or the other male workers, this is disparate treatment, yet another form of hostile work environment. Ms. Pollard’s termination is a violation of our own sexual harassment policy which states that “in the event of a complaint against an employee is made, the employee will have the right of defense at a hearing prior to termination.” No such event took place which solidifies the disparate treatment Ms. Pollard received.
My suggestion is for a settlement that would consist of hiring Ms. Pollard back, however, not in the same capacity. You do not want to continue with a hostile work environment. Allow for back pay to be issued to Ms. Pollard, minus a weeks’ pay for suspension due to her actions in a previous complaint. You will also need to suspend your supervisor, Mr. King, without pay since his actions, reported or not, far out weight Ms. Pollard’s actions of revealing the back of her bra. All things said, her conduct was wrong but clearly it was due to circumstances that she could not control and due to the hostile work environment supported by Mr. King and not in line with the company policies governing Teddy Supplies sexual harassment (hostile work environment) policy. http://ca10.washburnlaw.edu/cases/1997/12/96-8103.htm http://www.mrsc.org/subjects/personnel/sexharr/courtdec.aspx

2. a. Sexual harassment is a violation of Title VII of the Civil Rights Act. It takes on two forms, one being quid pro quo. Quid pro quo is when an employee is required to submit to sexual advances in order to remain employed, secure a promotion, or obtain a raise. The other is atmosphere of harassment, which is when invitations, language, pictures, or suggestions become so pervasive as to create a hostile work environment or where working conditions become too stressful to work due to the unwanted behavior (Jennings, p.648).
In the case of Smith, vs. Magnus, Ms. Smith was employed with Northwest Financial, Inc. and her manager, Mr. Magnus was creating a hostile work environment. While at Northwest, Plaintiff worked as an accounts service representative under the supervision of defendant Mr. Magnus. The office employed one part-time female employee and only five full-time employees, namely Plaintiff, Mr. Magnus, and three other men. The employees shared a small open space without partitions or privacy. Plaintiff alleged that she was subjected to a hostile work environment based on offensive and sexually harassing comments made by Mr. Magnus during her employment. Plaintiff's claim rested primarily on six statements directed at her and frequently made within earshot of her co-workers. In October 1994, Plaintiff complained to her district manager about Mr. Magnus's harassing statements. Plaintiff resigned from Northwest in January 1995 and began work as a bookkeeper with a furniture company. She filed a court case after pursuing her claim with the EEOC. The advisory jury returned a verdict for Plaintiff, and the district court entered a judgment for Plaintiff for compensatory damages for emotional distress, lost future fringe benefits, and also attorney's fees.
This case is similar to Pollard’s in that it was a single female employee who was being harassed by her male coworkers with the support of the direct supervisor. A verbal complaint was made to her district supervisor with no apparent action taken by the company. If the Ms. Pollard was not terminated, the hostile environment would have continued leading Ms. Pollard to file a complained with EEOC or seek employment elsewhere or both. I would use this case in defense of Pollard because the facts are similar and show that the employer is responsible for harassment violations and is liable for all damages.

http://ca10.washburnlaw.edu/cases/1997/12/96-8103.htm
b. Virginia has become a victim of a hostile work environment (atmosphere of harassment). Her work environment perpetrated by her coworkers and supported by her manager consists of inappropriate language, pranks, actions against her directly (spankings), and other unwanted and uninvited behavior. She has been treated with complete disregard to her feelings or well being and that the environment created discomfort for her and no concern to her health or safety. Sexual harassment law is in place to protect everyone from these acts. No one should be subjected to discrimination of any type in the work place. The Title VII of the Civil Rights Act of 1964 itself does not mention the term harassment at all but the U.S. Supreme Court has interpreted that a hostile work environment will violate the prohibitions of Title VII. When harassment is so pervasive and severe that it actually alters an employee’s terms or conditions of employment and creates an abusive working environment, a violation of the law has occurred.

c. Two recent Supreme Court cases, Burlington Industries v. Ellerth, and Faragher v. Boca Raton have set forth rules governing when an employer could use an "affirmative defense" in defending against sexual harassment. The employer must show two elements: that (1) the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Employers are held completely liable for the conduct of their employees and should do anything and everything possible to prevent harassment in the workplace.
As with Burlington Industries, Inc. v Ellerth and Faragher v City of Boca Raton, Teddy’s defense comprises of two elements: (a) that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior. This was accomplished by having a sexual harassment policy in place, providing sexual harassment training, insuring that employees take the training and a sign-in sheet acknowledges training received and providing a means to report harassment cases. Second element (b), Virginia unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (Jennings, p. 650). Virginia was aware of the policy, she even signed a copy acknowledging it, and however, she did not submit written notice, she did not use the online harassment report form and also she did not discuss the events with anyone at the company.
d. Disparate treatment is a form of discrimination where there is a distinct difference of treatment of employees of one race or sex or any other differentiating characteristic. In this case it is clear that disparate treatment occurred since neither Mr. King nor any other male employee was ever disciplined for their actions. Even in the complaint that led to Ms. Pollard being terminated resulted in no disciplinary action against the other male workers. The hostile work environment would not have existed if Virginia were a male since from this case it is clear that the actions were geared towards a female and not towards any of the other male coworkers.

3. One of the best ways to avert a sexual harassment suit is for companies to draft a well-written sexual harassment policy, one that employees can find quickly and easily. Incorporating this policy into the employee handbook and/or posting in areas where employee’s can readily view the policy (i.e. break room, cafeteria, etc.) is the best way to make it accessible for everyone in the company. This policy is critical because under federal case law, an employer fulfills its obligation if it takes all reasonable steps to prevent harassment before it occurs, and to take effective steps to remedy harassment after it takes place. If an employer demonstrates those attempts at prevention and remediation, it might not be found liable for the act of harassment itself. Teddy’s Supplies has a fairly complete sexual harassment policy but there are omissions and/or not enough information that can confuse or misinform the employee’s.
Statement of Policy: * there is a statement of policy which directs employee’s to read and follow the policy but there is no owner of this policy (i.e. company president or human resources department vice president) * requires the zero-tolerance statement to enforce the strong company commitment to the policy
Definition of Sexual Harassment * There is a definition of sexual harassment but it’s merged within the scope of the policy and needs to be in its own section * A broad definition should be set forth that includes illegal sexual discrimination, unwelcome advances, requests for sexual favors, and any other verbal, visual, or physical conduct of a sexual nature. It should make clear that submission to any of that conduct cannot be made, explicitly or implicitly, a term or condition of employment, or used as a basis for any employment decisions. It must ban all behavior that has the purpose or effect of unreasonably interfering with an individual's work performance, or creating an intimidating, hostile, or offensive work environment. It should include examples of sexual harassment, while making very clear that the list of examples is not intended to be all-inclusive
Responsibility and Reporting Structure * The policy directs employee’s to direct their harassment reports directly to the supervisor or through the online submission form but there is no means of orally reporting the transgression to an assigned agent or an HR representative to make the harassment report more comfortable and personal. * In the event of a complaint, there is no clear and thorough investigation and remediation procedure * The policy must actively encourage victims of sexual harassment to report the behavior, and expressly identify several appropriate individuals authorized to receive the harassment complaint. * The investigation of harassment reports should be designed to obtain a prompt and thorough collection of the facts, an appropriate responsive action, and an expeditious report to the complainant that the investigation has been concluded, and, to the full extent appropriate, the action taken. To accomplish that result, a company should establish a formal investigative process, not a trial by committee as currently stated.

Online Reporting * Training needs to be provided on effectively using the online submission form, not just on the company sexual harassment policy * Access to the online submission reporting should not be from the benefits page, it should be its own link accessible from any computer within the company and should not require the employee to login with their username/password * The online report form as mistakes that make it difficult to use and may appear that there are technical difficulties with the site, the issues are as follows: i. it is not possible to circle an option in question 1 ii. question 5 and 6 do not allow for reply as there are no line indicating where to type the response iii. Last part of the form indicates that contact information from question 9) will be used to contact the employee regarding the online submission. This contact information is actually the parties that have participated in the harassment iv. Contact information from question 10 should be used to contact the employee v. Online submission form requires the entry of a ticket number and no such number is found anywhere on the form. This is confusing to the employee and will prevent them from successfully submitting the form * Online reporting should be a link that directly allows the employee to email the HR representative who will handle the case directly. The employee can clearly indicate the event(s) that took place and relay any information they feel comfortable with before being contacted by HR.
It is imperative for both employer to have and enforce the sexual harassment policy and for the employee to follow the procedures and report violations. A U.S. appeals court rules that where an employer has an effective and well-disseminated policy against sexual harassment, the employer cannot be held liable for hostile environment harassment unless the victim reports the harassment under the policy and the employer fails to remedy it; the company’s knowledge of harassment will not be presumed even if the harassment is pervasive. Farley v. American Cast Iron Pipe Co., 74 FEP Cases 217. The employee must utilize the mechanisms to report the harassment in order for the proper remedies to be applied as per the harassment policy. The California Supreme Court rules that an employer would have had “good cause” to fire an employee for sexual harassment even though a jury had ruled that the alleged misconduct did not occur, so long as the employer reached a conclusion “supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” Cotran v. Rollins Hudig Hall Int’l Inc., 75 FEP Cases 1074.
Having a reporting mechanism in place and the employees using this system protects both employers and employees. http://www.dotcr.ost.dot.gov/Documents/complaint/Preventing_Sexual_Harassment.htm 4. Ms. Pollard is a victim of sexual harassment hostile environment and her termination was a disparate treatment by her former employer. If Ms. Pollard’s replacement is a female it would be imperative that the replacements treatment is one of fairness, respect and decency. If the replacement testifies that she is not a victim of sexual harassment hostile environment then it may weaken Ms. Pollard’s case by casting doubt on her statements. If the female replacement is treated in the same manner as Ms. Pollard then it adds credibility and merit to Ms. Pollard’s case further strengthening her claims. The damages would not be different in either case since they cannot be judged by actions not associated with the case. But if taken into account then Ms. Pollard's damages awarded may be lessened in the case when the female replacement is not experiencing a hostile work environment since it casts doubt on the legitimacy of the initial claim.