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A recent Federal Court decision set a new standard for avoiding liability in an harassment lawsuit. In EEOC v. V & J Foods, Inc., the court held that an employer’s harassment complaint procedure was ineffective because it could not be easily understood by the workers who comprised the bulk of the employer’s workforce.

Liability under EEOC v. V & J Foods, Inc.

Samekiea Merriweather, a 16 year old high school student, worked part-time at a Burger King restaurant owned by V & J. Tony Wilkins, the general manager of the Burger King, was having sexual relations with numerous female subordinates. Merriweather rejected Wilkins’ sexual advances towards her which included sexually suggestive comments and contact. Eventually, Wilkins fired her for missing an afternoon of work. He later rehired her and the harassment continued. Merriweather complained repeatedly to the shift supervisors and to the assistant manager of the restaurant to no avail. Merriweather specifically asked the assistant manager for a phone number that she could call to complain about sexual harassment. The assistant manager eventually gave her a number, but it was a wrong number. Merriweather’s mother then came to the restaurant and complained about the sexual harassment of her daughter to a shift supervisor. When the shift supervisor informed Wilkins of the mother’s intervention, Wilkins fired Merriweather.

An employer may potentially avoid liability for harassment under Title VII if it has created a reasonable procedure for the victim of harassment to complain about the harassment and obtain relief, but the victim has failed to use the procedure. However, if the harasser is a supervisor and the harassment results in an adverse employment action, such as termination of employment, the employer will be held responsible. In this case, the court noted that whether a complaint procedure is reasonable depends on the "employment circumstances" and "on the capabilities of the class of employees in question." Thus, in light of its large teenage workforce, the court found that the employer was obligated to create a complaint procedure that would be understood by the "average teenager." The court concluded that the employer failed to demonstrate that it provided an effective complaint procedure; indeed, its procedures were "likely to confuse even adult employees."

Prevention is the Best Tool to Eliminate Harassment in the Workplace

This case points out that an harassment prevention policy and complaint procedure should consider the unique needs of each employer’s workforce. Employers should periodically review their policies and procedures and train employees regarding the policy and how to make a complaint. Employers should train supervisors and managers regarding the handling of complaints of harassment or discrimination and how to avoid retaliatory conduct. Employers also should communicate the consequences for failing to adhere to an anti-harassment policy and for retaliating against employees who raise complaints of harassment or discrimination.

Specifically, employers should:

1. Tailor complaint procedure to your workforce. Write your anti-harassment policy reporting procedures so that your main workforce can understand what it says and how to report a complaint. For example, if a large part of your workforce is made up of non-English speaking workers, your policies and procedures should be made available to the workers in their native language.

2. Be specific--make sure employees know names and numbers. If your policy says employees can complain to upper-level supervisors by title, make sure employees know who they are and how to contact them. If you maintain a toll-free number that employees can call to reach a human resources employee to report incidents of harassment, make sure it is clearly communicated that it is for harassment, discrimination and retaliation complaints. Also, make sure you give out the right number. Call and test it before printing it in a handbook.

Employers are encouraged to take the steps necessary to prevent harassment from occurring. Employers should clearly communicate to employees that harassment, discrimination and retaliatory conduct will not be tolerated. Employers can do so by establishing an effective complaint or grievance process that is tailored to the employer’s workforce and taking immediate and appropriate action when an employee complains.

If you have additional questions regarding the implementation of anti-harassment, discrimination and retaliatory conduct policies or training, please do not hesitate to contact a member of Bingham McHale’s Labor and Employment Practice Group.



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