Wednesday, April 16, 2008

Employment of teenagers brings new harassment headaches for employers

[A]n employer can avoid liability under Title VII for harassment (on a ground, such as sex, that constitutes a form of discrimination that the statute forbids) of one of his employees by another by creating a reasonable mechanism by which the victim of the harassment can complain to the company and get relief but which the victim failed to activate....

The mechanism must be reasonable and what is reasonable depends on "the employment circumstances," ... and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet....

An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.

Such was the guidance given by the Court in EEOC v. V & J Foods, a case that involved allegations of sexual harassment by a teenage fast food employee. The key takeaway from this case is that there is no one-size-fits-all harassment policy. Policies must be tailored to the workforce, and differences in English proficiency, education level, and age could make for different policies, not in content but in language. The policy must be written so that the lowest common denominator in your workforce understands it and can use it.

The latter category, age, is especially important this time of year as we enter the summer hiring season. The ABA Journal points out that teen EEOC sexual harassment charges have risen 8%, while overall sexual harassment charges have actually fallen 15%.

Whether or not a company employees teenagers, these issues illustrate the importance of reviewing current sexual harassment policies for clarity and understanding. It is not enough to assume that all of your workers will understand the mechanisms that you have put in place for employees to make harassment complaints. The problem, however, is that a company might not know that its mechanisms have failed until it is sued. To combat these problems, companies should consider the following:

  1. Including provisions in harassment policies that require employees to contact a supervisor, manager, HR, or someone else in a position of authority at the company if they don't understand the policy.
  2. Creating multiple avenues for employees to make complaints - such as a phone number, email address, and more than one specific person within the company.
  3. Placing the onus on the employee to keep complaining if they don't get a response from the company.

Taken together, these suggestions will make it harder for an employee to claim she did not understand the policy, she did not know who to complaint to, she did not feel comfortable with the person designated to receive the complaint, or that her complaint was ignored.