December 2007/January 2008Newsletter

Having An Inadequate Sexual Harassment Complaint Procedure Is No Better Than Having None At All

Employment Law Express - Double Issue

A recent court decision involving a local Burger King restaurant reaffirms that it is absolutely essential for employers to maintain effective sexual harassment complaint procedures. Briefly, V&J Foods hired a 16-year old female to work at a Milwaukee Burger King. The general manager of the restaurant allegedly made sexual advances towards this employee, and became hostile when she rebuffed him. The employee complained to her shift supervisor, the assistant manager, attempted to report her problems to a hotline (she was given the wrong number), and finally had her mother come in to complain. V&J terminated the employee for involving her mother.

The EEOC filed a lawsuit on the former employee’s behalf, alleging hostile environment sexual harassment and retaliation. Although a lower court dismissed the suit, the Seventh Circuit reinstated it, finding that supervisor harassment gives rise to strict liability; that V&J had failed to create a harassment reporting procedure that was understandable by a teenage employee in his or her first job; that the complaint procedure included wrong phone numbers; and that shift supervisors and assistant managers had failed in their obligation to report complaints to the general manager. See EEOC v. V&J Foods, Inc., No. 07-1009 (7th Cir. November 7, 2007).

The Court’s decision reaffirms several important points of interest to all employers:

  • Reporting procedures must be tailored to workforce: The Court specified that the complaint mechanism must be “reasonable” under the circumstances. For example, if employees cannot speak English, explaining the complaint procedure only in English is not reasonable.
  • Procedure must provide employees with options other than reporting directly to the harasser. If the only avenue to report sexual harassment complaints requires the employee to complain the harasser, without any other options, the procedure will not be deemed “reasonable” under any circumstances.
  • Management employees must understand and fulfill their obligations under the policy. V&J Foods may have avoided this situation had its lower level managers taken appropriate action when informed of the problem.
  • Employees must have access to the policy. It should be handed out to the employees (whether in a handbook or otherwise), it should also be conspicuously posted in the workplace, and the company should provide periodic training on the policy.
  • The EEOC is keeping a closer eye on employers who hire minors. It has a national program, Youth At Work, whereby it looks carefully at the workplaces of younger workers and prosecutes these cases as needed.
  • Having a reporting hotline is favored by courts – but it better work. On the other hand, this case demonstrates that having a hotline that is not easy to use can get employers into more trouble than not having one at all.
  • Employers are expected to protect minor employees. The Court was unmistakably troubled in this case that young men were supervising teenage girls. There is nothing inherently unlawful about this, but employers should be aware that, where the complaining employee is younger and presumably more naïve or vulnerable, these kinds of cases are easier to bring and more likely to win the sympathy of judges or juries.
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