Reprinted from the January 21, 2008, issue of PERSONNEL LEGAL ALERT, a widely read employment law newsletter that keeps HR executives up-to-date on the latest court cases, legal trends, government regulations, and federal legislation that affect the policies you write and procedures you administer. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Minor Employees: A Major Harassment Policy Concern

Employers can assert an affirmative defense against sexual harassment by creating a reasonable system for individuals to report the conduct and by proving that the victim failed to use the system. When assessing the reasonableness of your organization’s complaint system, it doesn’t matter so much that it makes sense to you — it needs to make sense to your employee population. One population that you need to be especially mindful of is minors. For many, this is their first paying job. A recent ruling highlights the dangers of assuming your company’s sexual harassment policy is adequate.

Case in point: A 16-year-old restaurant worker repeatedly complained to shift supervisors and the assistant manager that her general manager made sexually suggestive comments to her and rubbed up against her in an attempt to kiss her. Getting nowhere, she asked the assistant manager for a phone number that she Could call to lodge a sexual harassment complaint. He initially told her that he wasn’t sure if he could give her that number and then admitted that he didn’t even know if there was such a number. Eventually, he gave her a phone number, but it was a wrong number. When she informed him of this, he told her, “Well, I don’t know then.”

The employee’s mother then complained to a shift supervisor. He professed ignorance of the matter and promised to report the complaint. As per company policy, the supervisor forwarded the complaint to the general manager, even though the Complaint was about him. The general manager was then supposed to “turn himself in.” He didn’t. Instead, he fired the employee for involving her mother, rather than handling it “like a lady.”

On behalf of the employee, the EEOC sued the company for sexual harassment and retaliation. A trial court ruled that the company wasn’t liable for harassment or retaliation because the employee:

1. failed to follow the complaint procedure, which called for complaints to be lodged with “district managers” or via the company hotline.

2. wasn’t terminated for opposing an unlawful practice herself, but for involving her mother, whose complaint did not constitute protected activity.

The 7th Circuit Court of Appeals disagreed and revived the lawsuit. Here’s why.

1. The complaint procedures were “likely to confuse even adult employees.” Nowhere in the policy or employee handbook did it identify who district managers were or how employees could contact them, and the company referred to its complaint hotline as a source for “comments.” Employees could liken the hotline to a suggestion box.

Plus, 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.

2. As for the retaliation claim, the employee’s mother acted as her agent; therefore, terminating the employee for her mom’s actions could constitute retaliation against the employee just as it would if the employee’s lawyer complained to her manager and the manager responded by firing the employee. (EEOC v. V & J Foods, Inc., 7th Cir., No. 07-1009, 2007)

TEEN FRIENDLY

Policies don’t need to be tailored to the competencies of each employee. But they do need to be understood by the workforce as a whole. The known vulnerability of a protected class has legal significance (e.g., if employees cannot speak English, then explaining the complaint procedure to them only in English would not be reasonable). In this case, the 7th Circuit said, “Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.”

The court’s suggestion: Post a brief notice in the employee break room (and not visible to customers) that if employees have a complaint about sexual harassment or any other misconduct, they should call a toll-free number specified in the notice, which would connect to the HR department, where the receptionist would identify the office as that of the company’s HR department.

Lessons learned:

• Policies must be written in simple and straightforward language. Don’t worry about sounding too elementary.

• You must provide specific and correct contact information for multiple individuals with whom employees can lodge complaints.

• Remember that employment rights may be a completely foreign concept to teens, so spend more time going over policies with them than you normally do with adults. Suggestion: Walk them through the exact process of filing a harassment complaint.

• Managers must be trained on the policy. They need to be able to answer employees’ questions.

• Complaints coming from a minor’s parent cannot be given any less weight or respect than those coming directly from the employee.

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