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EEOC: How to Avoid Sexual Harassment Suits

SAN FRANCISCO – The U.S. Equal Employment Opportunity Commission (EEOC) spoke with Blue MauMau about how restaurant and franchise owners can avoid getting into the kind of sexual harassment trouble in which Burger King franchisee Kaizen recently found itself.Kaizen Restaurants Inc., which operates dozens of Burger King restaurants in Oregon and Washington, will pay $150,000 and implement preventive measures to resolve a sexual harassment lawsuit filed by the EEOC. The EEOC is the agency that enforces sexual harassment and anti-discrimination federal laws.

Linda Li, a program analyst with the San Francisco office of the U.S. Equal Employment Opportunity Commission, shares her insights on how restaurateurs and franchise owners can avoid getting entangled in sexual harassment lawsuits.

BMM: I see in the Kaizen Restaurants Inc. case, the young employee's complaints to management were ignored. She complained that a married supervisor kept touching her and constantly saying she needed to be bedded.

Li: This was her first job, and she has been impacted very negatively, fearing that she will be subjected to harassment on the job and that her employers will take no remedial action. She began working there when she was 16 years old. Almost a year later the harassment by a co-worker and by a supervisor began, and lasted for about two years, until she was forced to quit. She reported the harassment to shift leaders, the assistance restaurant manager and the restaurant manager, until she reached the point that she felt she had no other option but to leave.

BMM: Do fast food restaurants have a disproportionate share of EEOC problems? I ask this because it strikes me that these business owners are in a tough situation. What is affordable in these low margin businesses are supervisors that are typically high school grads or sometimes dropouts. And they recruit young high school students to work part-time. That has to be an explosive mix.

Li: Here's my quick answer: If you just scan EEOC's recent cases, you'll see a number of franchisees and fast food restaurants listed. You can also type in "franchisee" or "restaurant" into the press release search box.  Issues include sexual harassment, disability discrimination, religious discrimination, retaliation, pregnancy discrimination, national origin and racial discrimination. The charges run the gamut, but sexual harassment seems to be frequently recurrent.  In fact these type of cases involving young workers, which most often are in fast food or mall/retail jobs, grew to be so numerous and so egregious that it inspired the EEOC to launch a youth outreach initiative aimed at both employers and young workers.

BMM: Does the EEOC have any suggestions on what franchisee Kaizen should have done in the hopes that other restaurant owners can learn from this unfortunate situation?

Prevention definitely beats correction! To eliminate discrimination and harassment in the workplace, employers are encouraged to take the necessary steps.

  • Clearly communicate to employees that sexual harassment (and other forms of discrimination) will not be tolerated.
  • Provide sexual harassment training to their employees
  • Establish an effective complaint or grievance process (make sure there is more than one way to complain, so you don't wind up with the fox guarding the henhouse, or a harasser/harasser's best friend being the person who receives complaints)
  • Take all reports of discrimination or harassment seriously. This means making sure that all your employees know they have a duty to bring any unfair treatment or harassment to your attention.
  • Managers act immediately to correct the situation. Respond with immediate and appropriate action when an employee complains.
  • Employees have a right to complain about treatment that they believe is illegal job discrimination. You cannot punish employees, treat them differently, or harass them because they report job discrimination or help someone else report job discrimination, even if it turns out that the conduct was not illegal.

Employers might have some prevention tools in place. But you do need to make sure these measures are taken seriously. In the Kaizen case, when the young woman referred to a breakroom poster on sexual harassment and asked the harassers both to stop, they laughed and said it was okay because she had a "hot a--." In another EEOC case involving a young worker, the employer actually had a fairly comprehensive policy against sexual harassment (training employees at their time of hire, an 800 # to the corporate HR department, posting information) BUT the local store manager failed to implement any of these great policies and procedures.

LESSON: Make sure your infrastructure is as good as your intentions! Have a way to check up to make sure the field is carrying out your policies. Don't rest on your laurels for having a good policy: make sure that it's being implemented in all facilities.

BMM: What sort of tools do you have that business owners and their managers can use?

Li: EEOC keeps revising its website www.eeoc.gov to be more user friendly. I highly recommend checking out the website and exploring our fact sheets on various discrimination topics. (Prohibited Practices is a one-stop page of what not to do!)

If that seems overwhelming, perhaps this page is good for young firstline supervisors who need to understand their responsibilities. The last two bullets on this link may be especially important, given the high frequency of disability discrimination cases in my quick and informal survey of fast food franchisee cases at the EEOC.

For more on sexual harassment, I highly recommend our Q&A on Harassment. In particular, look at the answers for these questions:

7. What should employers do to prevent and correct harassment?

8. What should an anti-harassment policy say?

9. What are important elements of a complaint procedure?

10. Is a complaint procedure adequate if employees are instructed to report harassment to their immediate supervisors?

11. How should an employer investigate a harassment complaint?

12. How should an employer correct harassment?

13. Are there other measures that employers should take to prevent and correct harassment?

For those who want to go more in-depth, check out Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, especially these sections: Effective Investigative Process, Questions to Ask Parties and Witnesses, Assurance of Immediate and Appropriate Corrective Action.

Please feel free to contact me or my colleague as a resource for training. We offer free outreach to employer groups, and fee-based annual seminars and customer specific training. (Twitter: @eeoc_sf and Facebook)

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