Sexual Harassment — Employment of Minors, Quirky Question # 12

Quirky Question # 12:

Our company employs a lot of minors.  We have a policy prohibiting sexual harassment.  It is written for our work force as a whole and is not tailored toward the high school students we employ.  A friend of mine recently told me that our policy has to be understandable by the high school students for it to be valid.  Is that true?  Also, we occasionally get complaints from the parents of the kids who work at our firm.  I don’t pay much attention to those complaints since some of these parents are overprotective and I figure that kids will let me know if they truly have a concern.  In your view, are there any problems with this approach?

Dorsey’s Analysis:

Although I generally believe there are risks associated with relying too heavily on legal advice from friends, here you have been provided useful guidance.  Your company policies (whether sexual harassment or any other policies) should be tailored to your company’s workforce.  If that workforce is predominantly teenagers, you need to consider that fact when crafting your policies.  If your workforce comprises a significant number of individuals for whom English is a second language, you need to tailor your policies to that component of your workforce.

In a very recent federal appellate court decision, EEOC vs. V & J Foods, Inc., No. 07-1009 (7th Cir. November 7, 2007), the court addressed a number of issues relevant to your inquiry.  In the V & J case, a 16-year-old girl was employed by Burger King.  She was sexually harassed in a variety of ways by the 35-year-old male manager of the restaurant (propositions, offers to pay her for sex, unwelcome touching, etc.).  She made efforts to complain about his conduct, which resulted in her being fired by the store manager on pretextual reasons.  She was rehired soon afterwards but the problems persisted.  Her mother then attempted to intercede on her behalf by registering complaints with the Assistant Manager of the restaurant.  This was promptly reported to the Manager, who fired the employee a second time in response.

The EEOC sued on the employee’s behalf, claiming both hostile work environment sexual harassment and retaliation.  Somewhat surprisingly, the District Court granted the employer summary judgment, dismissing the EEOC’s case.  The lower court found that the young employee had failed to avail herself of the reporting mechanism provided by the employer and that she could not bring a retaliation claim based on the actions of her mother.  The appellate court reversed.

There are at least four important principles addressed in the 7th Circuit opinion, each relevant to the questions you’ve posed.  First, the appellate court stated emphatically that the trial court’s analysis misconstrued the Faragher/Ellerth affirmative defense requirement.  That affirmative defense only is available to employers when the employee has not suffered “tangible economic harm.”  In this case, the employee was fired (twice).  In a context involving actions by a supervisor, resulting in tangible economic harm, there is strict liability.

Second, to the extent the employee was seeking damages corresponding to the time period when she was still employed, the appellate court found that the affirmative defense could apply.  The court, however, rejected its application because the sexual harassment policy and its reporting mechanism were not reasonable.  While recognizing that an employer “is not required to tailor its complaint procedures to the competence of each individual employee,” the court emphasized that “[k]nowing it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.”  The court found that the “known vulnerability of a protected class has legal significance.”  Applying this analysis to the facts of the V & J case, the court found numerous deficiencies with the mechanism set forth in the company’s Employee Handbook with regard to reporting sexual harassment problems.

Third, the court reiterated the well-recognized principle that “[a] policy against harassment that includes no assurance that a harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law.”  V & J’s policy did not create a mechanism that would allow its employees to circumvent the harasser, when that harasser was the store manager.

Fourth, the appellate court rejected the district court’s analysis of the retaliation issue.  The appeals court found that the employee’s mother was acting as her agent.  The court noted that minors “must act through agents in any legal matter, and their agents are their parents or guardians.”  Comparing the mother’s action to that of an attorney acting on a client’s behalf, the court found that the employee’s mother was “opposing a practice” prohibited by law.  The manager’s decision to terminate the employee as a result of the mother’s complaints were, therefore, retaliatory.

As you can see, this analysis applies directly to your situation.  Given that your company employs “a lot of minors,” you need to be sure that your policies, including your sexual harassment policy, are written in a way they can understand.  Ensure that you avoid the problems encountered by V & J.  The policy must be clear.  It must be easily understood.  It must identify the individuals to whom a complaint can be brought if a problem arises.  The policy must not compel the employee to report the problem to the harasser himself.  If you are sensitive to these common sense steps, you should not encounter problems.

As for complaints by a parent, take them seriously.  Recognize that in this context, the parent is acting as an agent for his/her child.  You certainly need to avoid any punitive action toward the minor employee based on the parent’s behavior, especially when the parent is trying to alert you to conduct that he/she considers unlawful.  If you take punitive action against the employee, you risk a legitimate retaliation lawsuit.

Dorsey & Whitney

Dorsey & Whitney

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