Gm520 You Decide

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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...
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