Employers can create all the anti-harassment policies they want and still end up liable for sexual harassment. The key to a successful policy is action. The policy must work. And the policy won’t work if supervisors ignore it or aren’t trained how to implement it.
Remember, the only way you can avoid liability over supervisor sexual harassment is to have an effective sexual harassment policy. It has to do more than look good in theory; it must work in reality. The EEOC has little patience for paper policies that supervisors ignore, especially when young workers are being harassed.
Recent case: The EEOC sued an International House of Pancakes franchise after two female teen workers told the agency they had endured months of sexual harassment at the hands of an older supervisor.
The first teen said that her shift supervisor constantly propositioned her for sexual favors, suggested she would like “rough sex” and might enjoy a threesome with the supervisor’s girlfriend. The other teen testified about the same supervisor pulling her ponytail, telling her how good her pants looked and also suggesting she would like “rough sex.”
Both teens complained to the restaurant manager, who did nothing.
After listening to their accounts, a jury awarded one of the teens $4,000 and the other $1,000 in lost wages, plus $100,000 in punitive damages.
The company appealed the verdict and argued that it should not be held responsible since it had a sexual harassment policy and trained everyone—employees and managers alike—on how to spot and report sexual harassment. It said all new employees received sexual harassment training and were instructed to read and sign a copy of the policy.
The court said that wasn’t good enough. It refused to overturn the verdict because, although supervisors were supposed to take sexual harassment training regularly, that didn’t happen in practice. One supervisor testified that when she became a manager, she never received training even though she, in turn, was responsible for training her subordinates.
Plus, the court pointed out that when an employer uses teen labor, it must be particularly careful to ensure their complaints are investigated.
In this case, employees never received a copy of the policy they signed when they started work. A policy notice the employer posted on bulletin boards wasn’t clear enough to let teens know how to complain about sexual harassment. The poster never mentioned sexual harassment specifically and was captioned “Crisis.” The court said employees could easily assume the instructions and phone numbers were for reporting fires, natural disasters and other emergencies—not a supervisor’s sexual harassment. (EEOC v. Management Hospitality, et al., No. 10-3247, 7th Cir., 2012)
Final note: This was a significant victory for the EEOC, which has over the past few years concentrated some of its enforcement power on helping teen workers in the fast-food industry.
Don’t keep the policy under lock and key. Make it simple so all employees understand what harassment is and how to report it.
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