Last Friday, on September 29, the EEOC filed a lawsuit against a restaurant in Virginia alleging that the restaurant violated federal law by subjecting an 18-year-old female employee to a sexually hostile work environment and retaliating against her by reducing her hours when she complained about the alleged harassment.
The complaint alleged that throughout this female employee’s tenure at the restaurant (she was hired in 2015), her co-employees levied unwelcome sexual comments her way, and one older male manager touched her (sexually) in the same or similar way that he had done in the past with at least one other female employee of the company. At the time, the restaurant lacked a sexual harassment policy as well as employee complaint procedures.
Anyway, the hostess complained, and in response, the company reduced her scheduled hours. An additional wrinkle here is that, according to the complaint, the wife of the alleged harasser handled the scheduling for all employees. Yes, you read that right.
Did the employer react correctly and appropriately to the employee’s claim of sexual harassment? No, not if these allegations are true, it did not, and, unsurprisingly, a formal complaint to the EEOC ensued.
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).
“Sexual harassment is always unacceptable and unlawful in any workplace,” said a regional attorney in the EEOC’s Charlotte District Office. “When a teenager is a victim, the abuse is all the more unconscionable. Very young people are among the most vulnerable to this kind of misconduct, and the EEOC is committed to putting a stop to it.”
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.
Moreover, once an employee complains to the Human Resources Department or a supervisor about sexual harassment, if the employer then takes any adverse action against the employee, like say, reducing the employee’s hours so they earn less income, the employer can be held liable for retaliating against the employee for complaining about discrimination.
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.
And, as we learned with the employer who asked the employee to cook for him while in the nude, employers should take all complaints of sexual (or racial or other protected class) harassment very seriously—starting with a thorough investigation of the matter and corrective action, if needed, pursuant to your Employee Handbook’s EEO policy (which you all have, right?).
Best Practices for Employers
If the allegations in the complaint are true, the restaurant 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.
- As my partner Rich Cohen said here, “along with proper training, [have] a top-down culture of zero tolerance…to keep[ing] the workplace free from sexual harassment.” If an employee knows her claims will be taken seriously and investigated, she is more likely to report any perceived sexual harassment or discrimination, and you can avoid a Charge of Discrimination from the EEOC.
- 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.
- 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.
- Thoroughly document any employee’s claim of sexual harassment as well as the steps you take to investigate and correct it, if warranted.
A final reminder for employers: preventing systemic harassment and retaliation continues to be one of the EEOC’s national enforcement priorities set forth in its Strategic Enforcement Plan for 2017-2021. The EEOC has stated: “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” Prevent this in your workplace.