Seventh Circuit Decision Underscores Need to Tailor Policies to the Workforce

A solid defense to a claim of sexual harassment is evidence that the complaining employee never reported the harassment before filing a charge. But what if the company’s anti-harassment policy doesn’t explain how employees should report such matters, or fails to identify the person to whom complaints should be made?

In an effort to cut costs, or simply because they think all policies are essentially the same, employers may be tempted to use a canned anti-harassment policy downloaded from the internet or sent to them by an HR colleague at another company. Be careful. Cutting corners can be costly if the policy is not geared to your workforce or properly administered.

In EEOC v. V&J Foods, Inc., No. 05-C-194 (November 7, 2007), the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) recently held that a fast food company, with a workforce comprised mostly of teenagers holding their fi rst paying jobs, could not rely on its current policy to avoid liability for sexual harassment because that policy did not describe a reasonable mechanism for employees to lodge complaints. What is “reasonable” depends on the employment circumstances, including the capabilities of the workforce. “Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager,” the court said. V&J did not meet this obligation. Indeed, in the court’s view the policy was so poorly drafted it was likely to confuse adults.

The policy did not clearly identify the person or persons to whom an employee could report harassment. Although stating that complaints in general should be made to the district manager, that position was not included in the list of corporate managers identifi ed in an employee handbook. There was evidence that employees confused district managers with restaurant or general managers. Because the harasser in this case was a restaurant manager, the court considered it possible that an employee would believe the only avenue of recourse was to complain to the harasser.

V&J pointed out that there was a “hotline” number on a statement included with each employee’s pay check. However, the number appeared in an inconspicuous place and did not identify the person to ask for when calling the hotline. Further, the stated purpose of the hotline was to enable employees to “comment” about the company. The court noted that a “comment” is not the same as a complaint.

The court went on to describe a reasonable and inexpensive complaint mechanism. V&J should have posted a brief notice in a break area (where it would not be seen by customers) telling employees wishing to lodge a harassment complaint to call a toll-free number included in the notice. That number, the court said, would ring in the human resources offi ce, where it would be answered by someone who would inform the caller that they had reached human resources.

If the managers responsible for implementing the policy are not adequately trained, the mere existence of a reasonable policy may be insufficient to avoid liability. V&J compounded its problem by failing to train its managers. When the female plaintiff asked a male assistant manager for a phone number to report the harassment, he said he wasn’t sure there was such a number, or that he could give it out if it existed. When he did provide a number, it was the wrong number. The plaintiff, on her own initiative, located and called the home phone number of a woman from the corporate training offi ce, who apparently hung up on her.

The reach of the V&J decision extends beyond the fast food industry. Employers generally should revisit their anti-harassment policies and confirm that they are appropriately tailored to the workforce. On the most basic level, be sure your employees can read the policy. If you have large numbers of employees whose native language is other than English, have the policy translated into that other language. To account for varying levels of sophistication or if there are issues or behaviorial patterns present in one area and not the other, you may need separate policies for different segments of your workforce. If you have employees who work at times when the human resources representatives are off duty, be sure the policy provides a complaint mechanism during non-regular business hours.

To underscore your intolerance for workplace harassment, periodically reissue the policy to your employees. Make sure you have a regular, documented practice of distributing the policy to new hires. And train your managers. They must understand what harassment is and be prepared to step in if they see it. They also must know how to respond if asked for help or to explain the policy.

Just as you should avoid cookie cutter policies, steer clear of one-size-fi ts-all training programs. There are many vendors willing to sell you live, on-site training or computer-based learning modules. Many of them are good, but check to see if they are relevant. Video segments showing examples of inappropriate conduct may be unhelpful to a workforce of production and maintenance workers, or to consultants who work in your customers’ factories.