Seventh Circuit Finds Employer's Harassment Complaint Procedures Insufficient

The federal appellate court with jurisdiction over Illinois employers recently reinstated a lawsuit brought against the owner of a fast food restaurant whose manager allegedly verbally and physically propositioned a 16-year-old employee. According to the Seventh Circuit Court of Appeals, the employee who was later fired by her manager because her mother complained about the harassment could proceed with her retaliation claim. The Seventh Circuit also held that the trial judge had improperly granted summary judgment to the employer on the harassment claim where the record reflected that the employer’s policies were both confusing and ineffective.  EEOC v. V&J Foods, Inc., No. 07-1009, Seventh Circuit Court of Appeals (November 7, 2007).

Factual Background

V&J Foods, Inc., the owners of several fast-food restaurants including a Burger King restaurant in Milwaukee, hired Samekiea Merriweather, who was 16 years old, to work at the restaurant after school and on weekends. This was Merriweather’s first job, and shortly after she started working at the restaurant, the general manager, Tony Wilkins, allegedly began making advances at her including making suggestive and inappropriate comments (including offering to pay her for sex), rubbing against her, and trying to kiss her. According to Merriweather, when she rebuffed Wilkins’ advances, he became hostile towards her. He later fired her for missing a shift, which he assigned her to work without notifying her. However, Wilkins soon rehired her and allegedly continued to harass her.  Merriweather complained to junior managers, asked for a number to call to report her problems, was given an incorrect number, and otherwise rebuffed in her attempts to report Wilkins to his superiors.

After Merriweather complained to her shift supervisors and to the restaurant’s assistant manager to no avail, her mother came to the restaurant to complain to a shift supervisor, who in turn notified Wilkins. Wilkins then fired Merriweather for involving her mother in the complaint “rather than handling it ‘like a lady’.” The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Merriweather’s behalf alleging hostile work environment sexual harassment and retaliation in violation of Title VII of the Civil Rights Act. The trial judge granted summary judgment to the employer on all counts, ruling that Merriweather had not properly invoked the company’s procedure for complaining about harassment, and that Wilkins’ decision to fire her based on her mother’s intervention was not actionable under Title VII because it was “third-party retaliation.”  The EEOC appealed this ruling to the Seventh Circuit Court of Appeals.

Legal Analysis

The Seventh Circuit first noted that an employer may avoid harassment liability under Title VII if the victim of the harassment failed to follow the company’s established complaint procedures. In this case, however, the court found that because Wilkins was Merriweather’s supervisor and the harassment took the form of a firing, the employer is strictly liable for such actions. Therefore, the court noted that the presence or absence of adequate complaint procedures was relevant only to Merriweather’s claim for damages for the harassment that she suffered. 

The Seventh Circuit next noted that since employing teenagers, who are part-time workers often working for the first time, was part of V&J’s business plan, it was obligated to create a complaint process that would be understood by the average teenager working his or her first job.  According to the court, the employer failed to do that in this case. The court found that the complaint procedures appearing in V&J’s handbook were so badly stated that “they were likely to confuse even adult employees.”  As illustrated by the court, the handbook stated that harassment complaints should be made to the district manager but failed to identify the district manager. Likewise, the phone number on the cover of the handbook was simply a general reception number, and no hotline number was included in the booklet.  The only arguable “hotline” number was on the employees’ paychecks, but it was inconspicuous (the manager, Wilkins, did not know where to find it) and simply solicited “comments” about the company – which the court found could be reasonably viewed by employees to act as more of a “suggestion box” rather than a complaint number.  Moreover, the court found that shift supervisors and assistant managers are required to forward complaints to the general manager (in this case Wilkins, the alleged harasser) even if the complaints are about him or her. The court concluded that such 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.”

Turning to Merriweather’s retaliation claim, the Seventh Circuit noted that people often act through agents (such as lawyers) and that minors “especially because of their legal and functional incapacities, must act through agents in any legal matter, and their agents are their parents or guardians.”  Therefore, the court held that the retaliation claim in this case should be reinstated because the minor employee was discriminated against as a result of her parent’s assistance in opposing discrimination. The court next considered whether Merriweather’s mother, as her daughter’s agent, should be charged with failing to activate V&J’s complaint procedures. The court concluded that Merriweather’s mother could not have been expected to pursue the matter any further. Therefore, the court reversed the trial judge’s decision and reinstated both claims brought on Merriweather’s behalf.

Practical Impact

According to Robert Casey, a shareholder in Ogletree Deakins’ Chicago office: “The facts (although certain to be disputed at trial) as recited by the Seventh Circuit make the court’s decision a forgone conclusion.  Employers would be well served to look at this case and make sure that their anti-harassment procedures and training satisfy all the criteria set out by the court; namely, they should be clear and understandable, published adequately, written with their target audiences in mind, and methods should be available that make it easy to report complaints against even the highest levels of management while bypassing the harasser who may be highly placed.  Hotline numbers or anonymous complaint lines should also be strongly considered.”

As for the retaliation component of this decision, that too should not be a surprising result according to Casey. “If a minor child is your employee, you can expect that she will have a parent or legal guardian act for her. This does not mean that employers must open up all employment procedures involving minors for participation by a parent or guardian as a matter of law, but it does mean that an employer cannot retaliate against the minor employee if the parent or guardian acts on her behalf to protest allegedly unlawful conduct – even if the employee does not ask or want her parent or guardian to become involved.”    

Note: This article was published in the December 2007 issue of the Illinois eAuthority.