Client Alert - Employment Law Update
Federal Appellate Court Scrutinizes Anti-Harassment Policy
The U.S. Court of Appeals for the Seventh Circuit recently reinstated a sexual harassment lawsuit after finding numerous problems with an employer's anti-harassment policy. The decision demonstrates that ineffective policies can adversely impact employers who find themselves in litigation.
Anti-harassment policies are an important part of avoiding liability under federal sexual harassment laws. However, employers who do not have understandable or workable policies risk losing the benefits they intend to secure in the first place. In the case of EEOC v. V&J Foods, Inc., No. 05-C-194 (November 7, 2007), the U.S. Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana and Wisconsin, decided that a fast food restaurant could not rely on its policy as a defense to a claim of sexual harassment because it was confusing and not tailored to its workforce.
The court explained that a policy must describe a reasonable mechanism by which an employee can lodge complaints and obtain relief from harassing conduct. Whether a mechanism is reasonable depends on "employment circumstances," which include the capabilities of the workforce. For example, the defendant in V&J Foods was a fast food restaurant that employed many teenagers and part-time workers. While employers do not have to tailor procedures to the competence of individual employees, V&J was obligated to institute a policy that the average teenager would understand.
Not only did V&J fail to adopt procedures understandable to teenagers, but its policy even confused adults. While employees were directed to make complaints to a "district manager," no such position was contained in a list of corporate managers on the front of the employee handbook. Further, employees seemed to confuse "district manager" with "restaurant or general manager." In addition, a hotline that was supposedly available to employees was inconspicous and ambiguously described as a "comment" line. When the plaintiff asked an assistant manager whether there was a number she could call to report the harassment, even he did not know if such a number existed or whether he could give her the information she requested.
What to do
Simply having a written policy is not enough to defend against claims of sexual harassment - employees must be able to understand complaint procedures. This means that policies should be multilingual for workforces comprised of individuals who do not speak English. In addition, managers should be trained so that they understand what constitutes harassment, and how to handle complaints. Policies should also be systematically distributed to employees, and periodically reevaluated to ensure their effectiveness.
If you would like more information about how this decision affects your business or would like counsel concerning your employment policies or practices, please contact Mr. Gonzalez at 312-558-9779 or at egonzalez@elvisgonzalezltd.com
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