What is wrong with people?
I swear, I find myself asking that question on a daily basis.
Because as an employment lawyer, you read things. You hear things.
One complaint that had me shaking my head was the EEOC lawsuit filed in the U.S. District Court for the Middle District of Georgia, Macon Division, against one BBQ restaurant employer alleging that it subjected a teenaged female employee to a sexually hostile work environment and retaliated against her by terminating her after she complained about the alleged harassment.
According to the EEOC's suit, a male manager subjected the freshman in college to the following:
- he made daily unwanted comments about the female employee's physical appearance and his romantic feelings for her;
- he spread false sexual rumors about her; and
- he cornered her in areas of the restaurant without cameras, demanding a hug or attention from her before allowing her to pass by.
It's worth a deeper dive. Some of the daily comments included:
"You smell nice"
"Your jeans look nice"
"You're cute when you get upset"
"I wish I didn't marry my wife so we could be together"
The manager also rearranged his shifts so that he worked the same ones as the female employee.
I wish I was making up these allegations, but I'm not. You can read them for yourself in the Complaint, here.
The female employee complained about the harassment to her supervisor on multiple occasions, but no effective remedial action was taken in response. Instead, the restaurant terminated her shortly after her last complaint.
Did the employer react appropriately to the employee's claim of sexual harassment? No, not if these allegations are true, it did not.
The Law: Sexual Harassment and Retaliation
Sexual harassment may be harassment because of a person's sex as well as inappropriate touching. As defined by the EEOC, sexual harassment can include "unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, as well as offensive remarks about a person's sex.
When does it become illegal? Harassment violates the law—Title VII of the Civil Rights Act of 1964—when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
"When the franchisee learned about the misconduct, it should have taken reasonable steps to correct it. Instead, the company punished a teenage employee for exercising her rights, rather than the individual who was harassing her. The EEOC will fight to correct the injustices perpetrated in this case," said a regional attorney in the EEOC's Atlanta District Office.
Indeed. I emphasize the hostess's age because... subjecting a teenager to sexual comments and harassment is unlikely to play well to a jury! I'm sure I don't have to tell you that.
https://pixabay.com/users/haibaron-3003429/
Moreover, once an employee complains about sexual harassment, if the employer then takes any adverse action against the employee, like say, firing her, the employer can be held liable for retaliating against the employee for complaining about discrimination.
Why?
Informing management—whether it's a supervisor, manager, or Human Resources Department—about unlawful workplace discrimination is "protected activity" under Title VII, which prohibits an employer subjecting an employee to an "adverse action" (demotion, from termination, etc.) when that employee has opposed any practice made an unlawful employment practice by Title VII. As we discussed here and here, reducing an employee's compensation or job duties while offering her what is tantamount to a demotion presents a classic example of retaliation, also prohibited by Title VII.
What Employers Need To Know
If the allegations in the complaint are true, this employer has ignored some of our cardinal rules, which include:
- Have a strong, clear anti-sexual harassment policy and investigation procedure set forth in your employee manuals and handbooks and follow your policy. Your handbook should describe prohibited conduct and provide examples as well as complaint procedures.
- Maintain and enforce a strong anti-retaliation policy in your workplace. Clarify for your employees in black and white that if an employee reports sexual harassment or discrimination, she will not suffer retaliation. This encourages reporting, which is beneficial for your company's workplace morale, attrition levels, and reputation. Check your policies, and check your culture.
- Regular, interactive training (about which we discuss here and here), tailored to your workplace and promoted by senior leaders, that teaches managers how to recognize and respond to conduct that could be construed as or lead to unlawful harassment. Include bystander intervention training in your anti-harassment regimen even if it's not required by law.
- Thoroughly document any employee's claim of sexual harassment as well as the steps you take to investigate and correct it, if warranted.
The EEOC's Strategic Enforcement Plan for Fiscal Years 2024-2028 (SEP) and recently issued outreach initiative prioritize protecting vulnerable workers from employment discrimination, including teenage workers employed in low wage jobs.
Employers, the EEOC is certainly watching.
Take a good long look and consider any changes to promote an organizational culture of respect, accountability, and one that does not tolerate sexual harassment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
