Pollard, Sharon v. E.I. DuPont de Nemours & Co. (06/04/2001)

By: Benjamin Lanka, Medill News Service

Questions presented

Is ""front pay,"" money that compensates for future lost income, included under the $300,000 statutory cap Congress placed in the 1991 Civil Rights Act (42 U.S.C. @ 1981a) for intentional discrimination based on race, national origins, sex, religion, or disability?

Brief

Sharon Pollard just wanted to fit in at DuPont. She was one of four women in the peroxide department. There were six people on her shift and she was the only female.

She cooked and ate meals regularly with co-workers in the break room. She even described her work environment as a kind of extended family, but that was about to change. She made a choice in February 1994 that would haunt her for the rest of her employment.

She spoke to a group of girls at the plant during ""Take Your Daughters to Work Day.""

After that, men in her area, especially Steve Carney, put her through what she described as a ""slow torture"" of daily harassment because of her gender.

Many of the men in the plant were upset about TYDTWD; one described it as ""horse malarkey.""

Carney made it clear to Pollard that he and others were against her participation in TYDTWD. Mark Cobb, the one male employee who continued cordial relations with Pollard, testified that Carney instructed the other men on the shift not to eat with Pollard or talk to her after she spoke to the daughters.

Cobb said that Carney referred to Pollard as a ""bitch"" and ""split tail"" during work. The men went farther than mental abuse, however. They also sabotaged her work environment.

Pollard and Cobb testified that on several occasions Carney would set off false alarms in Pollards area and would not notify her of real alarms. The men would also tamper with her peroxide vaporizers, which created more work for the next shifts operator and made it seem like Pollard couldnt do her job.

Pollard said she notified her supervisor David Swartz several times about the abuse, but nothing was done. A meeting about the abuse was held after a few months, but Carney was on vacation and nothing was resolved.

Pollard also attended several meetings with the Womans Network, an organization to help women in the workplace. Beth Basham, peroxide unit supervisor, attended some of those meetings and heard Pollard speak. She testified that she was aware of the problem.

""[I] knew there was a real problem in the peroxide area of the male workers accepting the role of a female in that area,"" she said. ""[I] was of firm belief that [Pollard] had been harassed on account of her sex in the peroxide area.""

She later testified that she never investigated the situation, wrote a report or sent a memorandum about the abuse to anyone in upper management at DuPont.

On May 28, 1995, Pollard met with Gary Lewis, plant manager, and disclosed the full account of the abuse she had gone through. As a result, Lewis spoke to Carney, but gave him no formal reprimand or punishment.

After a brief peaceful period, the harassment of Pollard continued. She asked her manager to switch shifts, but all he offered was a shift that involved Rory Bricco, a man who had previously harassed her, and she did not want to work with him again.

In July of 1995 Pollard received a highlighted copy of the same Bible verse Bricco had put on her desk years earlier. ""A woman should learn in quietness and full submission. I do not permit a woman to teach or have authority over a man, she must be silent,"" quoting 1 Timothy 2:11. Pollard was devastated.

""I felt like I had been hit with a brick,"" she testified.

After this, Pollard went on short-term disability leave and would never return to work at DuPont.

While on disability, in February of 1996, DuPont representatives met with Pollard and told her they couldnt guarantee she wouldnt have to work with Carney. She said she couldnt work under those conditions and DuPont fired her.

Her male co-workers threw a party to celebrate her departure. Carney admitted to throwing the party after Pollard left and even to calling her derogatory names, but he denies interfering with her work.

Pollard filed suit in federal court against DuPont for violating Title VII of the Civil Rights Act of 1964. A non-jury trial was held in October and November of 1997, and U.S. District Judge Jon P. McCalla ruled for Pollard.

He ordered DuPont to pay over $100,000 in back pay, $300,000 in compensatory damages, and Pollards legal fees. Congress set a cap on compensatory damages for discrimination suits at $300,000, which is the amount awarded Pollard. McCalla did not award her additional front pay, which is money to compensate loss of future income.

McCalla followed the 6th Circuit Court of Appeals holding in Hudson v. Reno that front pay is subject to the Title VII cap, but he felt the award did not sufficiently compensate Pollard.

""The court notes that the $300,000 award is, in fact, insufficient to compensate [Pollard] for the psychological damage, pain and humiliation she has suffered,"" McCalla wrote in his opinion.

DuPont appealed, and Pollard cross-appealed that front pay should not be subject to the limitations on damages under the statutory cap.

The 6th Circuit Court of Appeals agreed with McCallas decision that Pollard was harassed based on her gender and the damages awarded were warranted.

When it came to deciding whether front pay was limited or not, the court balked. Pollards attorney had argued that front pay was not an element of future pecuniary loss, but it is a remedy of reemployment in situations where reemployment would be inappropriate. The Equal Employment Opportunity Commission, in an amicus brief, agreed with Pollard that Hudson had been wrongly decided.

The court said they agreed with the arguments, but could not overturn a decision of another panel of their own court without an en banc consideration of the argument.

Kathleen Caldwell, Pollards attorney, filed for an en banc hearing of the case, but it was denied. She described this as ""very discouraging.""

Caldwell said Congress never intended to include front pay in the cap. She cited opinions of other circuit courts that are contrary to the 6th Circuit. She said including front pay under the cap can be detrimental to people who have lost high paying jobs due to harassment.

""This [ruling] is harsh, particularly in persons who are in management positions who made a significant amount of money and wont be able to make that in future employment,"" Caldwell said.

DuPont disagrees.

On Jan. 8, 2001, the U.S. Supreme Court granted certiorari in the case, with Justice Sandra O'Connor taking no part in the consideration or the decision to accept the case.

Caldwell said the damages awarded in the district court have been paid.

On June 4, 2001, the Court held 8-0 that ""front pay"" in sexual harassment cases is not covered by the $300,000 cap on statutory damages. The decision favoring Pollard was written by Justice Clarence Thomas. Justice Sandra Day O' Connor took no part in the case.