WHAT REMEDY IS PROPER FOR SEXUAL HARASSMENT? The Supreme Court Case Of Pollard V. E.i. Dupont De Nemours

Next month, the Supreme Court will hear argument in Pollard v. E.I. Dupont de Nemours, a case that tests the remedial limits of Title VII, the federal statute that combats sexual harassment and other forms of sex discrimination.

The case arose because Sharon Pollard, an operator in the mostly male hydrogen peroxide area of a DuPont plant, was harassed by her co-workers for nearly a decade. She won her case at trial, and the question before the Court is how much Pollard is entitled to in damages.

Specifically, the Court will consider whether an award of "front pay" (that is, pay Pollard would have received had she returned to work at DuPont after winning her case) is subject to a statutory damages cap. The Court, I will argue, should hold that the cap does not apply. But despite the Court's exclusive focus on the remedy issue, there are other aspects of the case that are notable.

The first interesting aspect of Pollard's case is that the harassment she experienced–and proved at trial–was, while sex-based, not sexual in nature. (By "sex-based," I mean non-sexual conduct designed to humiliate, denigrate, or undermine a woman because she is female). Given the high degree of publicity received by cases where the harassment is of a sexual nature, it is important to remember that harassment that is simply based on sexist conceptions of women is just as unlawful.

Pollard was harassed because she was a woman doing what was traditionally considered a man's job. A male operator, equal to her in rank, put a Bible on her desk open to the passage "I do not permit a woman to teach or have authority over man. She must be silent." A group of male co-workers circulated an e-mail condemning Pollard for participating in Take Your Daughters to Work Day, and others criticized her for attending a company-sponsored support group called the Women's Network.

Pollard's co-workers also referred to her with a series of derogatory, gendered slurs, and openly discussed the fact that they did not approve of women working in the peroxide department, coaching softball teams, or doing other "men's work."

Pollard's co-workers also directly undermined her ability to do her job–they told male operators not to follow her instructions, set off false alarms in her area, and sabotaged her projects so as to make it appear that she was incompetent.

Title VII prohibits discrimination on the basis of sex — which includes harassment serious enough to affect the terms or conditions of employment. Courts have always held that sexual conduct is "because of sex," typically without much analysis, but sometimes hesitated to recognize sex-based harassment like that experienced by Pollard. But early on, the Equal Employment Opportunity Commission made clear that Title VII also prohibits sex-based harassment. And courts now follow suit.

Ironically, sex-based harassment is much more obviously "because of sex." It is obvious that if Pollack were not a woman, she would never have been subjected to the mockery, hostility, and subterfuge that she endured. Men are not mocked for taking their sons to work with them, nor are they shown Bible passages encouraging their silence and obedience.

Yale Law School Professor Vicki Schultz wrote a landmark article explaining the link between sex-based harassment, women's competence, and equality in the workplace. Much workplace harassment is not, she suggests, motivated by sexual desire; rather, it is designed to undermine women as workers and preserve a gendered hierarchy in the workplace. By recognizing the harms of sex-based harassment, courts will contribute to the dismantling of occupational segregation (with women doing "women's jobs," and men doing "men's jobs")–an essential step to securing true workplace equality.

Pollard's case also illustrates how an employer may become liable for harassment of its employees. In Pollard's case, because the hostile environment she proved was created by co-workers rather than a supervisor or high-ranking company officer, her employer could only be held liable if it knew or should have known of the harassment and failed to take prompt and effective remedial action.

DuPont was properly held liable under this standard. It had actual notice of the harassment — based both on Pollard's repeated complaints to her direct supervisor, and his first-person observation of the offending conduct. As a result, DuPont was legally obligated to investigate Pollard's claims and, if it found them to be legitimate, to take steps reasonably calculated to stop the harassment and prevent it from recurring in the future.

Moreover, DuPont performed only a cursory investigation into Pollard's allegations, never formally reprimanded or otherwise sanctioned any of the harassing co-workers, and ultimately required her to return to work in the same unit where she had experienced harassment as a condition of keeping her job. DuPont's woefully inadequate response, according to the appellate court, only "allowed the situation to fester." Unsurprisingly, DuPont was held liable at trial.

That brings us to the question the Supreme Court will address: How much, in damages for "front pay," must DuPont pay Pollard?

Until a decade ago, "legal" relief, such as compensatory or punitive damages, was not available under Title VII. Title VII instead provided only for "backpay" and "any other equitable relief as the court deems appropriate." Back pay runs from the beginning of the actionable discrimination until the date of the judgment, and equals the difference between what the victim earned and what the victim would have earned absent the discrimination. Other equitable relief could include, for example, a declaration that the employer discriminated, reinstatement of the plaintiff-employee, or an order forcing the employer to cease its discriminatory practices.

But Congress subsequently enacted the Civil Rights Act of 1991, which made new remedies available to plaintiffs bringing employment discrimination cases. Pursuant to the 1991 Act, a plaintiff alleging intentional discrimination (which includes harassment) can now seek two forms of "legal" relief: compensatory damages, based on both pecuniary losses like medical expenses and non-pecuniary losses like pain and suffering, and punitive damages, based on the wantonness of the employer's misconduct.

Together, compensatory and punitive damages are subject to a cap determined by the size of the defendant-employer. For the largest employers (like DuPont), the limit is $300,000 per claim. The cap, however, does not apply to any relief available under Title VII prior to the 1991 amendments.

The question before the Supreme Court in Pollard's case is whether "front pay" is subject to the $300,000 cap, or whether it is "equitable" relief, and therefore unlimited. Front pay is an award of lost wages from the date of judgment forward into the future.

Should front pay be though of as "legal" relief similar to compensatory damages? One might argue that it should be, because just as compensatory damages repay plaintiffs for monetary losses resulting from discrimination, front pay can compensate plaintiffs for anticipated future monetary losses.

Or should front pay be thought of as "equitable" relief? One might argue (as Pollard has) that it should be, because it can substitute for reinstatement to the same position— an "equitable" remedy — where reinstatement would be inappropriate.

A three-judge panel of the Sixth Circuit Court of Appeals ruled against Pollard in the decision that the Supreme Court will review — but it did so unwillingly. A prior three-judge panel within the same circuit had held in Hudson v. Reno that front pay was subject to the 1991 Act's damages cap, and Pollard's panel did not have the authority to overrule that decision. (Only an en banc panel, including all the judges in the Sixth Circuit, or the Supreme Court could do that).

Three other federal circuit courts have agreed with Pollard's position that front pay is not subject to the damages cap, and none have agreed with the Sixth Circuit. The Supreme Court has likely accepted the case because of this "circuit split."

That result makes sense not simply because it correctly applies an arcane legal distinction, but also because of Title VII's basic purposes. Title VII's two main functions are to deter future discrimination and to compensate victims of past discrimination. Both functions would be served by permitting plaintiffs access to an uncapped award of front pay.