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Agency and Discrimination Law
To: Ted Moore, CEO Teddy’s Supplies
From: Independent Human Resources Consultant
RE: Appeal on Virginia Pollard Case
The memo is meant to respond to your request in which you required the facts surrounding Pollard’s alleged sexual harassment case and the potential liability for the company. It is important to know the liabilities the company is exposed to, the probability that it will be held liable, and the worst case damages that can be imposed. Pollard might be base her accusation on the violation of Title VII of the Civil Rights Act of 1964, which does not allow sex discrimination in the workplace. This Act also allows her to mention the hostile environment at the workplace. This is a form of discrimination in terms of unwelcoming physical and verbal conduct, which should be constitutionally protected. Further, she might support her allegation by quoting Faragaher v. City of Boca Raton in which the court ruled out that the supervisors has unchecked authority of their juniors, which was unlawful. This is because the company is held liable for the employees’ conduct.
Mr. King, Pollard’s supervisor posed a hostile environment for Pollard. This environment included sexual harassment aspects. This includes all the pranks she fell victim of when working in the warehouse including the truck reading “HARDHAT REQUIRED/BRA OPTIONAL”. In this case, the workplace environment is uncomfortable for Pollard. Additionally, Mr. King and his male subordinates violated the sexual policy statement in the company. The policy holds that there is zero-tolerance to any form of harassment. The management overlooked this harassing behavior when firing Pollard. The sexual harassment incidents included the pressure on Pollard to show her bra, Mr. King’s overlooking of the reported incident by Pollard that she was picked by the male employees, and all the spanking incidents. Although Pollard did not file a complaint as required in the company policy, it is evident that she suffered from sexual harassment and the company is liable for the actions of the perpetrators. According to the EEOC, offensive conduct of harassment includes offensive jokes, offensive pictures/ objects, slurs, insults/ put-downs, epithets/ name calling, mockery or ridicule, intimidation, and physical assaults/ threats that interfere with one’s work performance (Sigal& Denmark, 2013).
The damages associated with these claims include monetary compensation and apology letters. All the male employees who sexually harassed Pollard including Mr. King should apologize to her through a letter. The management is also required to write an apology letter for overlooking the harassing actions of the male employees. She should also be retained in her earlier job position.
How Title VII applies to this Fact Scenario
In SEC. 2000e-2 of Title VII, it is unlawful for an employer to discharge an individual of discriminate him/her based on gender among other factors (Solotoff& Kramer, 2014). This was the case for Teddy in which Pollard was discharged of her duties as a result of her gender. The accusations made against her resulting to her dismissal are not valid. The law also requires that the employer does not classify his employees in a manner that will affect the status of an employee as a result of her sex. This is the case here in which Pollard is grouped with men who make her workplace environment hostile. This Act was violated since Teddy did not hold its male employees liable for their actions but rather considered Pollard guilt of the claims and dismissed her from work. Even though she had not filled the sexual harassment form as per the policy, the company is liable for the harassing behaviors of its male employees.
Appellate Level U.S. Cases that Discuss Sexual Harassment and Title VII, and Pertain to this Case
One of the best cases applying in this case is Faragaher v. City of Boca Raton(Faragher v. City of Boca Raton (97-282) 524 U.S. 775 (1998)) in which the court ruled out that the supervisors had unchecked authority of their juniors. In this case, Faragher resigned from her position after her supervisors Silverman and Terry created a sexually hostile work environment for her (Temple University, 2001). The supervisors made sexually harassing utterances to their female juniors. This case applies to the unchecked behaviors of Mr. King. Since he is Pollard’s supervisor, he should not take advantage of his position to collude with other male employees to sexually harass her. He should not look for any opportunity he gets to make Pollard’s life unbearable. This is what Mr. King and other male subordinates do through the pranks, the spanking, the written words on the truck, and forcing her to remove her bra.
Another case applying to this incident is Burlington Industries, Inc. v. Ellerth. In this case, Ellerth alleges that she was subjected to frequent sexual harassment by her supervisor, Slowik. Even though Ellerth does not fill the company policy form on sexual harassment or report to her immediate supervisor as the company policy requires, the court ruled in her favor. This was because Slowik had made her workplace environment hostile and uncomfortable(United States&Anzalone, 2002). This is the same case for Pollard who has not filled the company policy form on sexual harassment. However, the company is still liable for the unchecked behavior of its employees.
Ways 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
In order to prevent technical hitches that can prevent employees from filling the policy form and filing the complaint form as required, the company can have such forms send to the individual email addresses of the employees. This way, each employee will have access to the form anytime he wants it. The company can also have the form provided on the website, not as a form to be downloaded but as a ready to use form. The employee would only need to go to the website and find the form ready to use. The other option would be to have the form as a hardcopy and with easy accessibility for the employees. Employees are required to fill the complaint form as the company policy requires. However, this does not mean that the court would not rule in favor of the sexual harassment victim if there are valid reasons. However, failure to fill the complaint form would add to the defense of the company because the case was not brought to their knowledge.
Would Pollard’s case be affected if her replacement was female? If so, how? If not, why not?
If Pollard’s replacement was female, it would mean that the company does not discriminate against female employees. It would be evident that the company values female employees as much as it does for male employees. However, this does not change the fact that Pollard was sexually harassed. The case would still remain that she faced sexual harassing incidents and qualify for compensation and have her position back.
Sigal, J., &Denmark, F. (2013).Violence against girls and women: International perspectives.Santa Barbara, California: Praeger.
Solotoff, L., & Kramer, H. S. (2014).Sex discrimination and sexual harassment in the workplace. New York, N.Y. (345 Park Ave. South, New York 10010: Law Journal Seminars-Press.
Temple University.(2001). Temple law review. Philadelphia, PA: Temple University School of Law.
United States.,&Anzalone, C. A. (2002). Supreme Court cases on gender and sexual equality, 1787-2001. Armonk, N.Y: M.E. Sharpe.
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Business Law: Family and Medical Leave Act of 1993
- Evaluate how the provisions of the Family and Medical Leave Act of 1993 apply to situation A. explain whether or not a violation has occurred in situation A.
The Family and Medical Leave Act of 1993 apply to a permanent employee. There are so many clauses for this ACT but the one applying to this case is that of an employee who is a parent and thus given 12 administrative workweeks off work as leave during any 12-month period when he/ she has a newborn child and needs to take care of the newborn child. This implies that an employee cannot go for more than o a single 12-workweek leave with one year, 12 months. The law also allows the employee to take the leave on a continuous basis unless there is an arrangement with the employer to take in or a reduced basis or intermittently. It is possible for the employer to ask for a statement that the employee is required to take care of the newborn child. After returning from leave that is legally granted, the employee is expected to be restored by the employer to the earlier held position before the leave or to an equivalent position from where the employee enjoys equivalents benefits, status, pay, and other employment terms and conditions. Further, with the leave being taken legally, under section 6382 of the Act, the employee would be entitled to all employment benefits accrued before the leave started. This implies that the employee is not entitled to accrued employment benefits during the leave period (Arnesen, 2007).
Considering the sections of the Family and Medical Leave Act of 1993 and the presented situation in situation A, it is evident that no violation had occurred. This is because the ACT provides job-protection for employees who are given a 12-week unpaid leave. What is required is that the job of the employee is protected. Upon returning to the company, he should be given back the earlier job or an equivalent position from which he should enjoy equivalent employment benefits. This is what happens to Employee A. Company X has agreed to grant the employee a family leave to take care of his newborns. He was entitled to a 12-week leave and this means that he can arrange with the employer to take one-week later in the same year. The company has restored the employee’s job position because he has taken him back to his earlier position and with the earlier rate of pay. This is an indication that the company has not violated the Act. Further, the company has a right to deny the employee the 11 weeks’ withheld salary since this is not provided by the law. The Act requires an employee to be given unpaid leave but the job is protected.
- Analyze situation B regarding the Age Discrimination in Employment Act of 1967. Explain whether or not a violation has occurred in situation B.
The Age Discrimination in Employment Act of 1967 is meant to protect old employees (aged 42 years and above) from employment discrimination. This Act was formulated because older workers have difficulties to retain their employment or get new employment after displacement of jobs. The Act has a number of sections that are required to protect old employees from any job discrimination that is based on his age. The employer is answerable to the law if any discrimination in the job is based on the employee’s age rather than on other abilities. This Act is meant to promote employment of the old employees based on the ability and not their age. It is considered unlawful for the employer to discriminate an employee with respect to employment privileges as a result of the employee’s age (Buckley, 2014). It is also unlawful for an employer who deprives an employee of employment opportunities as a result of his age.
As explained in situation B, Company X fails to promote Employee B because of his age while there are other appealing aspects of the employee. It is notable that even though he is aged at 68 years, he has worked for Company X for 42 years. Additionally, during the last months, review, the employee had excellent performance. He beat all the targets reporting an above average performance. Considering the length of time Employee B had served in the company as well as his performance, he is entitled to any promotion that comes his way. His lack of promotion does have to be denied because of his age. Since he has not reached retirement age and his performance is admirable, he can still serve the position in a higher position that he can manage. This makes Company X liable for violating the Employment Act of 1967 with respect to age discrimination. If Employee decides to sue the company or it reaches the act of law what the company did, it would be charged with discrimination.
- Analyze situation C regarding the Americans with Disabilities Act of 1990. Explain whether or not a violation has occurred in situation C.
The Americans with Disabilities Act of 1990 prohibits discrimination that employers can have against people with disabilities in different sectors of the economy including in employment. The Act requires that the needs of people with disabilities are addressed, employment discrimination against them is prohibited, and they are free to be employed in public services, telecommunications, and public accommodations. This Act was formulated because physical/ mental disabilities cases are increasing in US with these individuals continuously isolated and segregated in pervasive and serious ways. Discrimination of people with disabilities is in different forms but for the matter of the situation at hand, it will be analyzed in terms of discriminating persons with disabilities by failing to make modifications to the existing practices and facilities (Malesich, Begley, Rodin& University of Texas Health Science Center at Houston, 2008). The Act is thus meant to protect persons with disabilities from any form of discrimination at the workplace. This way, people with physical disabilities for instance should be able to serve in the same positions as people without disabilities. All is required is that the people with disabilities have cognitive abilities to handle the work and thus with modifications of the practices, they are able to serve as normal people do.
In situation C, Applicant C requires a wheelchair as a result of paralysis in order to fit in the job that requires movement around the entire company. The applicant also requires modified elevators so that he can access the seven floors of the company building. However, Applicant C is denied the employment because of the cost to the company once he is hired. In this case, the company has violated the Americans with Disabilities Act of 1990 since it is required that a person is denied employment as a result of his disability. The employee needs to be accommodated in the job through modifications of the equipment that will enable perform just as normal employees do. His cognitive ability allows him to fit in the job and thus he should not be denied the vacancy simply because he is disabled. The company should hire him and meet his conditions that would make the employee as flexible and mobile as the job requires.
Arnesen, E. (2007). Encyclopedia of U.S. labor and working-class history, volume 1. New York: Taylor & Francis.
Buckley, J. F. (2014). Equal employment opportunity compliance guide.London: Kluwer Law International.
Malesich, L. L. H., Begley, C. E., Rodin, A. S., & University of Texas Health Science Center at Houston. (2008). Policy analysis of the Americans with Disabilities Act of 1990 and federal funding concerning barrier-free playgrounds.(Masters Abstracts International, 47-1.)
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Nadel v. Burger King Case
- What court decided the case in the assignment? (10 points)
The case was decided in the court of appeal after the Nadels appealed. This is the court that is responsible for affirming and/ or reversing the ruling made by the first court.
- According to the case, what must a party establish to prevail on a motion for summary judgment? (10 points)
The movant should demonstrate that no genuine issue of material fact is left litigated, any material fact that is eligible to judgment as required by law. The material fact should be from the provided evidence and should support the evidence as it appears to the nonmoving party when viewed from his strong point of view. The provided material fact should also be in a manner that all reasonable minds would come to a single conclusion and the conclusion should be confrontational to the nonmoving party. When the moving party seeks summary judgment based on the fact that the nonmoving party would not prove its case, the moving party is obligated to inform the trial court of the motion basis and identify the record portions that prove the absence of a candid issue of material fact on any significant element of the claim by the nonmoving party pointing to some specific evidence that proves that the nonmoving party has no sufficient evidence to support the claim. After meeting all these obligations, the moving party should provide evidence on the issues at trail by setting specific facts and demonstrating existence of issue of fact that can be tried.
- Briefly state the facts of this case. (10 points)
The case is between plantiff Paul Nadel and the family (the wife, son, and two daughters) and defendant Emil, Inc. and Burger King Corporation (BK). Paul was driving his children to school in the company of his wife when he stopped for breakfast through the drive-through window service. The breakfast had sandwiches, drinks, and two coffee cups. The two cups of coffee were served on a cardboard container meant for four cups and thus the two served cups were placed on opposite diagonal corners. Upon tasting the coffee, Evelyn, Paul’s wife, found it too hot to drink and with the lid of the cup jiggling off as she lifted the flap, the hot coffee burned her on the right leg. Evelyn thus bended the flap of the lid to cover the cup and placed it on the car’s floor next to Christopher’s (her son’s) foot. Immediately, Paul drove off as he took a left turn on the street, Christopher started screaming that he was burned. It is at this time that Paul, Evelyn, and Christopher realized that both cups had tipped and hot coffee burned Christopher’s right foot resulting to his treatment for second-degrees burns. The cups, the container, and the lids are not in the record.
Nadels had several complaints namely breach of merchantability warranty and breach of fitness warranty because the coffee was too hot to drink, liability for defective product as well as failure of warning people of the dangers of handling such hot coffee, and negligence by failing to inform employees on how to serve such hot coffee and warning the customers to handle the hot drink with care. Emil moved for summary judgment arguing that that no sincere material fact was in existent. To support this claim, Emil cited Paul’s testimony that the coffee is served hot, he expected it to be served hot, he was aware that Emil’s is served hot, hot coffee can burn anyone it spills on, and whoever is handling hot coffee should be careful. Emil also provided the manual that required coffee to be served at 175 degrees. BK’s summary judgment was similar to that by Emil that coffee is a hot beverage and thus is served hot. For BK, negligence was on Evelyn’s and Paul’s part. Nadels opposed the motions for summary judgment arguing that Emil and BK were aware that such hot coffee could lead to second-degree burns. The summary judgment motion was granted by the trail court but the Nadels appealed.
- According to the case, why was this not a case of negligent infliction of emotional distress? (10 points)
For a case to be considered that of negligent infliction of emotional distress, the negligence of one party should have created actionable emotional distress to the other party. The emotionally distressed person should be unable to cope adequately with the caused mental distress. Claims of negligent emotional distress by Evelyn and Nadel are based on Evelyn’s statement that she was worried. However, Evelyn’s worry did not require psychological treatment. Paul also states that as he was receiving psychological treatment for depression as a result of his divorce he thought of the incident does not mean that the incident is a contributing factor to his receiving counseling. The two are thus unable to provide evidence that they were unable to cope with the mental distress the incident caused and thus the case cannot be considered as negligent infliction of emotional distress.
- What tort did the court approve? (10 points)
The approved tortisthe punitive damages even though the plaintiffs did not provide adequate evidence to support their claims. In this case, Emil and BK were found liable to compensate the Nadels because negligence on their part. As the manufacturers or suppliers of hot coffee, they should have ensured that the coffee was served in containers that were safe. The punitive damages were based on the likelihood of the manufacturer’s misconduct leading to serious harm, the extent to which the manufacturer is aware of this likelihood, the conduct/ attitude of the manufacturer after learning of the misconduct, and the financial condition of the manufacturer.
- According to the case, why didn't the court approve summary judgment for product liability claims? (10 points)
The product liability claims were based on design defect and failure to warn of danger. Design defect claims rule when the risks surpass the benefits. Winning in the issue of design defect should be after the Nadels prove that the coffee was excessively hot than an ordinary consumer would expect it to be. This is something the Nadels are unable to prove. Their only evidence is the second-degree burns suffered by Christopher. Nevertheless, the fact that the coffee caused second-degree burns makes it excessively hot and thus the court cannot approve the summary judgment. On the issue of the coffee being defective, the Nadels argue that the coffee was excessively hot and still lacked a warning to this. However, a product does not become defective because of lack of warning. Even with this, the court did not approve the summary of judgment because it was not obvious that the coffee could result to the severe burns and that the Nadels knew of this danger.
- Do you agree with this decision? Why or why not? (5 points)
I agree with the decision that the court approved certain summary judgments and disapproved others. BK and Emil knew that they were handling excessively hot and thus a drink that could pose danger to anyone handling it. Even though the case was not considered a negligent infliction of emotional distress, the product liability claims were valid. BK and Emil should have instructed the employees to warn the customers of the danger of handling excessively hot coffee. It was excessively because it caused second-degree burn on Christopher and this knowledge was not obvious to the Nadels. BK and Emil should have either verbally warned the customers of the dangers they were exposing themselves to by buying such hot coffee or have it written on the coffee cups.