Ship Captain

Assignment

Please answer all question below 1-11
Question 1-3
“Darned If You Do…Darned If You Don’t” – Exxon v. EEOC (graded)
• Only in the U.S. could such a problem occur. Following the Exxon Valdez disaster in Prince William sound caused by a Drunken Ship Captain that lead to $4.5 Billion in penalties and payments, Exxon initiated a company policy that required company employees with alcohol problems to step-forward and identify themselves. In return, Exxon provided rehabilitation and other assistance. However, they also put these people on a list prohibiting them from getting certain high-risk jobs, i.e. Ship’s Captain, helicopter pilots, refinery unit operators, etc.
• 60 such employees filed complaints with the EEOC, claiming discrimination against the disabled. Alcoholism is a recognized disability under the 1990 Americans with Disabilities Act (ADA), so Exxon’s attempt to address the problem of alcoholic employees (particularly drunken ship’s captains), turned into another disaster: EXXON v. EEOC in federal court. (See Case 7.1 from the Week 1 reading.)
1. What other actions could Exxon have taken to deal with this corporate problem?
2. Is this an over-reach in enforcing the 1990 Americans with Disabilities Act?
3. Were there other options available to the EEOC in trying to discipline Exxon, besides filing suit in federal court?

Question 4-11
You Decide
Antitrust and Consumer Protection Law – You Decide
Scenario

Virginia Pollard worked as a cashier and clerk for Teddy’s Supplies, a family-owned chain of film production equipment supply stores in Pennsylvania and New Jersey. During a routine performance evaluation, Virginia’s supervisor at Teddy’s complained that she made too many personal phone calls when she worked in the West Orange store. The supervisor noted this on Virginia’s annual review, and warned her to keep personal calls to a bare minimum while at work. Soon thereafter, Teddy transferred Pollard to guard film equipment in the main warehouse behind the storefront; Virginia couldn’t make personal calls there, and her work became exemplary. Her performance evaluation three months after her transfer was “meeting expectations” with no negative comments.
Virginia Pollard was the only woman working in the warehouse, and she was often the victim of pranks perpetrated by her six male colleagues. Her co-workers taped her drawers shut, locked her out of the guard shack she sat in to watch the inventory, filled the guard shack with trash, and backed a forklift up to the door and made it backfire in her ear. One day a Teddy delivery driver sat in Pollard’s chair and, when she tried to push him out of it, he bent her over his lap and spanked her. Pollard’s new supervisor, Steve King, rarely enforced Teddy’s rules against smoking, horseplay, foul language, and sexual harassment, and often indulged in such behaviors himself. Teddy’s had a written sexual harassment policy which included a method for employees to report sexual harassment – the method included filing a complaint with the direct supervisor unless the direct supervisor was the perpetrator. In that event, the employee was to file the complaint online at www.ReportTeddysafely.com. The form for reporting was a one page document. A copy of the policy which Virginia Pollard signed is located here. The policy specifically states, “In the event of a violation of this policy, employees should report the violation to their direct supervisor, unless doing so would put the employee at risk of further discrimination or harassment. In that case, the employee should report using the company website form which will submit the incident to Human Resources.”
Pollard never filed a complaint with Steve King, her supervisor; she also did not file a complaint at the website, although she claimed she told King in July 2008 that she felt she was being “picked on” by the guys she worked with. She claims Steve King told her to “grow some balls” and to “get over herself.” She testified during the NJ Human Rights Commission hearing that she tried to file an anonymous complaint but the website wasn’t working the day she tried to do so.
In August of 2008, 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. She refused and tried to walk away. King promised not to report her to management, whereupon she lifted one side of her shirt in the back and exposed part of her bra on her backside. Upper management learned of the incident that October by a co-worker who filed an anonymous complaint online. After a brief investigation, Pollard was fired for exposing her bra. None of the men were disciplined. A man replaced Pollard in the guard shack.
That November, Pollard filed a charge of sex discrimination with the New Jersey Commission on Human Rights. The Commission found
ROLE
You are an independent Human Resources Consultant that was hired by Teddy’s Supplies to consult on this case during the appeal.

Players
Francena Phillips “Cashiers”
I have worked for the company for 10 years. Virginia would often come to work with
tight clothes on. And all those phone calls she made were usually to men. I heard from
some of the guys in the guard house that she was really easy with them, too.

Ted Moore “CEO and founder”
I have over 150 employees. Although 70% of the employees are men, the executive staff, 20 in total, are comprised of mostly women. I have made it a priority to ensure that our company hires and promotes our employees equally and fairly.

Ms.Wilson “Systems Inc President”
I have had several interactions with Steve King and all have been stellar and am very surprised by the accusations. I require all my employees to attend yearly discrimination works

You are the independent human resources consultant hired by Teddy’s Supplies to help explain to the company what the case against them will entail. You have gleaned the facts from your investigations into the situation to date. You have never talked with Virginia Pollard. The case is currently in the appeals stage and the company executives have some questions for you. Answer them using the most recent legal information you can find.
4. Teddy’s Supplies’ CEO has asked you to advise him on the facts of the case and your opinion of their potential liability. He wants to settle the case. Write a memo to him that states your view of whether the company is exposed to liability on all issues you feel are in play. Include in your memo any laws that apply and any precedent cases either for or against Teddy’s case that impact liability. Include in the memo your suggested “offer of settlement” to Virginia. Back up your offer using your analysis of the case against Teddy’s.

5. The circuit court overturned the decision of the NJ Human Rights Commission that had found that Pollard was the victim of sexual harassment and disparate treatment. Please answer these questions:

6. Define sexual harassment, including both quid pro quo and hostile environment harassment. Which type(s) do you feel Pollard was a victim of (if either)? Provide law or a case to support your position. If you feel Pollard was not a victim of harassment in this case, explain why you feel that way, and provide law or a case to support your position.

7. Name an appellate court case in which an employer was found liable for either quid pro quo or hostile environment sexual harassment. Describe the facts of the case and the decision the court came to in the case. Explain whether you think that case applies to Pollard’s case (why or why not) and whether you would want to use this case in Teddy’s favor or whether Pollard may use it in her favor. Include the citation to the case and a link to it online.

8. Do you agree that Pollard was disparately treated? Why or why not? In your answer, define disparate treatment.

9. Does the existence of a sexual harassment policy provide a defense to Teddy’s in this case? Why or why not? (Include the name and citation of at least two federal or state sexual harassment cases that provide precedent support to your defense statement.)

10. Review the sexual harassment policy that Teddy’s has in place and that Virginia Pollard signed. Virginia Pollard claims she had planned to make an anonymous complaint but the website allowing that was down on the day she tried to do so. During the Human Rights Commission case, a review of the website statistics shows that Virginia accessed the website for downloading dental coverage forms at least three times during the time frame of the alleged discrimination. The commission determined that this ability of Teddy’s to track employees’ use of the site was a violation of their anonymity and therefore refused to consider this information. The circuit court did consider this in their decision. Provide three recommendations to the CEO for a way to ensure that employees in the future can not claim “technical issues” for why they didn’t make 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.

11. How would Pollard’s case be impacted if her replacement had been a female? Would her case be different? Would her damages be different? Explain your answer.

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