LABOR & EMPLOYMENT NEWSLETTER - One Size Does Not Fit All: Harassment Policies Must be Tailored to Your Workforce

Prudent employers have long prepared Employee Handbooks and other policies which set forth the employer’s expectations and policies for addressing certain situations. One of the most important policies an employer should have is a policy creating a reasonable mechanism by which a victim of harassment may complain to the company and get relief. This policy is important both as a good management practice, but also as a mechanism to potentially avoid liability for harassment claims under Title VII of the Civil Rights Act of 1964¹.

Since 1998 employers who created a reasonable mechanism for employees subjected to harassment to complain and get relief have been able to avoid liability if the victim of harassment fails to avail himself of the policy. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Essentially, if an employee has a reasonable means to report harassment to the employer so as to obtain relief, but fails to do so, the employer is not liable for the harassment. Id. However, “the mechanism” whereby an employee may complain must be reasonable and what is reasonable is a fact specific question based upon the “employment circumstances.” Faragher, 524 U.S. at 765; Wilson v. Tulsa Junior College, 164 F.3d 534, 541-42 (10th Cir. 1998). Recently, the Seventh Circuit Court of Appeals clarified that it is just as important for an employer to “know its audience” in preparing harassment policies as it is for the proverbial public speaker to know his.

On November 7, 2007, the Seventh Circuit decided EEOC v. V&J Foods, 507 F.3d 575, 2007 U.S. App. LEXIS 25856 (7th Cir. 2007), which held that a court must evaluate whether the language in an anti-harassment policy is reasonable and capable of being understood by the employees covered by the policy. A policy that might be sufficient for a largely college eduated workforce may be inadequate for a workforce of high school students or employees who cannot speak English.

Unfortunately, V&J Food’s case contained classically egregious facts. V&J Foods is a large holding company which owns and operates a number of Burger King and Pizza Hut franchises. At the time of the suit, V&J Foods characterized itself as “one of the largest restaurant franchises in the country.” Frighteningly to most employers, V&J Foods was not an operation without policies and procedures. V&J Foods maintained an employee handbook for its various franchises. V&J Foods included an anti-harassment policy that stated that complaints should be lodged with the “district manager.” The employee handbook contained a telephone number on the front cover to V&J’s headquarters. On each employee’s paycheck, V&J included a statement and provided another phone number for the company’s “hotline.” But none of this was enough to protect V&J Foods from what happened next.

Samekiea Merriweather, a 16 year old high school student, was hired to work in a V&J Foods Burger King in Milwaukee, after school and on weekends. This was her first paying job. Almost immediately Ms. Merriweather began experiencing difficulties with the general manager of the restaurant, Tony Wilkins, a 35 year old bachelor. Engaging in deplorable management practices, Mr. Wilkins was having sexual relations with several of the female employees at the restaurant at the time Ms. Merriweather was hired. In an apparent effort to add Ms. Merriweather to his harem, Mr. Wilkins began making suggestive comments to Ms. Merriweather, as well as rubbing against her and trying to kiss her. His comments were blatantly offensive -- one example was his statement of the fact that he “wanted a young girl” because of “their body. You know it is not all used up.” He also offered to take Ms. Merriweather to a hotel and offered to pay her $500 - $600 for sexual favors. Although Ms. Merriweather rebuffed Mr. Wilkins’ suggestions advising him that she had a boyfriend, Mr. Wilkins was not dissuaded and continued to press her for sex telling her he wasn’t going to do anything for her any longer since she was “giving her body away for free when he was trying to pay [her].”

Before long Mr. Wilkins fired Ms. Merriweather for missing an afternoon of work. The Court of Appeals was clear that it felt Mr. Wilkins reason was pretextual since it noted that Ms. Merriweather was scheduled to work that morning, but Mr. Wilkins altered the schedule without notifying Ms. Merriweather of the change. Ms. Merriweather was hired back, but the problems continued.²

Ms. Merriweather complained to the shift supervisors which the Court described as junior managers and to the assistant manager of the restaurant (Wilkins’ number 2), to no avail. None of the supervisory personnel reported the complaints to anyone in the V&J Foods organization other than Mr. Wilkins. Ms. Merriweather asked the assistant manager for a phone number to call to complain, but was told by the assistant manager he didn’t know whether there was such a number and if there was, whether he could give it to her. Although he eventually gave Ms. Merriweather a number, it was a wrong number. Eventually Ms. Merriweather’s mother came to the restaurant, complained to one of the shift supervisors and asked for assistance. The shift supervisor reported the mother’s complaint to Mr. Wilkins, who promptly terminated Ms. Merriweather for a second time for involving her mother rather than handling it “like a lady.”

Undoubtedly V&J Foods had no idea how Mr. Wilkins was operating this particular franchise. If it had of known, as a female-owned business, it likely would have been horrified. It is not a situation where V&J Foods didn’t have any policies or procedures; V&J Foods put policies and procedures in place to protect itself from such situations as harassment by its managers and staff. However, V&J Foods found itself liable for Mr. Wilkins’ misconduct because it did not act reasonably in adapting its generic policies to the type of workforce it employed.

The Court of Appeals found that V&J Foods knew that it had many teenage employees and was obligated to tailor its policies and procedures to the understanding of an average teenager likely to be working for the establishment. Although the employee handbook contained the requisite anti-harassment policy which directed employees to report any complaints to the “district manager,” there was no guidance as to how an employee who worked a single restaurant might identify who her district manager would be. Further, testimony indicated employees confused “district manager” with “general manager” – the position held by Mr. Wilkins at this Burger King.

Although Ms. Merriweather complained to her shift supervisors and the assistant manager, none of these managers reported her complaints to anyone other than Mr. Wilkins, her harasser, as they, too, were unfamiliar with the term “district manager.” Failing to provide a clear bypass procedure so that the complaint could be reported to someone other than the harasser is unreasonable as a matter of law. Faragher, 524 U.S. at 808-09. The V&J Foods Court of Appeals made clear that the use of the term “district manager” as the person to whom harassment should be reported, when there was not a means to identify who that person would be and how to reach him, made the policy unreasonable as a matter of law.

Although V&J Foods’ included the telephone number to its corporate headquarters on the front of the handbook, the number rang to a main receptionist, rather than an HR professional. The Court opined that given the size of V&J Foods, it must employ enough HR professionals to whom the calls could be directed. While a company hotline was listed on the paychecks, it was not conspicuous, and the employees were not familiar with the fact that there was a hotline or what it should be used for. The Court noted that the pay stub indicates that it should be used if the employee wants to “comment” about the company, which it perceived to be more like a suggestion box than a hotline for harassment complaints.

If it was cost prohibitive to provide clearer instructions and a path for reporting complaints, then such costs would have to be weighed against the relative benefits of the clearer instructions. However, here where V&J Foods appeared to talk the anti-harassment talk by adopting policies, but clearly failed to walk the walk by putting clear, understandable policies in place their specific workforce was likely to understand, they lost the protection a well written policy, tailored to their specific business, would have provided. EEOC v. V&J Foods should serve as a reminder for employers to revisit their policies periodically to ensure that they have kept up with company reorganizations, evolving job titles and demographic changes to the company’s workforce.

¹Title VII provides a cause of action for employees who are discriminated against on the basis of his or her race, race, color, national origin, religion or sex. It also provides a cause of action for employees who are harassed on grounds that are protected from discrimination under Title VII.

²In hindsight, to improve its oversight of its franchises, this juncture would have been an ideal time for V&J Foods to ask why an employee would be terminated and hired back within such a short period of time.