A Sexual Harassment Policy Is Inadequate If Teenaged Employees Can’t Understand It.

Earlier this month, the Seventh Circuit Court of Appeals in Chicago rejected an employer's affirmative defense in a sexual harassment case because its sexual harassment reporting procedures could not be reasonably followed by its teen-aged workforce. In that case, a 30-something restaurant manager sexually harassed a 16-year old part-time employee. EEOC v. V & J Foods, Inc., No. 07-1009 (11/7/07). He allegedly fired her temporarily for missing a shift as a pretext for her refusing his repeated advances. She complained to the shift and assistant managers, but they would not provide her with information about how to complain to corporate headquarters, did not alert headquarters to the problem and did not control their manager. She was then fired her again after her mother complained to the assistant managers about the harassment. She filed a Charge with the EEOC, which instituted litigation on her behalf.

The district court granted summary judgment for the employer, but the Court of Appeals reversed. First, the Court noted that an employer is strictly liable for tangible employment actions (i.e., the terminations of the teenager’s employment). Second, the Court found that the employer was not entitled to an affirmative defense for the harassment because its complaint procedure was completely inadequate. Among other things, the policy did not provide for bypassing the harassing restaurant manager, or the telephone number for the corporate headquarters (or anyone responsible for accepting harassment complaints). Moreover the district manager was not identified (or how to reach him) and the shift and assistant managers did not respond to the teenager’s complaints appropriately. Importantly, the Court held that a complaint procedure would not be reasonable unless it could be understood by a reasonable teenager since the employer routinely employed many teenagers. A one-size fits all policy will not support an affirmative defense if individuals are employed who would likely not understand it (because of language or experience, etc.). In that case, a teenager would not know how to use the sexual harassment complaint procedure because the information was not readily accessible in the employee handbook or other location.

Finally, the Court held that the plaintiff could pursue a claim for retaliation even though she was fired based on her mother’s complaint (instead of her own). The mother was clearly acting in her daughter’s interests and had legal standing to do so.

Insomniacs can read the full decision at http://caselaw.lp.findlaw.com/data2/circs/7th/071009p.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.