Posted Apr 01, 2008 07:38 pm CDT
When it comes to sexual harassment, lawyers have done a thorough job educating adult workers about the limits of acceptable behavior in the workplace. The same can’t be said of the youth workforce, however, as studies have shown an increase in sexual harassment claims.
Employment lawyers say suits by teen workers could become a major liability for businesses, and several recent court decisions involving teenage sexual harassment in the workplace attest to that.
“Really obvious sexual harassment [among adults] is declining,” says Jennifer A. Drobac, a law professor at Indiana University in Indianapolis who studies sex harassment and has written a legal textbook on the subject. “The problem with teens is that they don’t know right from wrong. They don’t know what is acceptable workplace behavior. Teens don’t get the training. They don’t read the manuals.”
While most American businesses have anti-harassment policies, procedures and training programs firmly in place for their adult workers, teenage workers often fall through the cracks. They tend to be part-time, temporary or seasonal. And in workplaces that commonly employ teens—fast-food restaurants, movie theaters and retail stores—managers also often are teenagers.
“It’s a line-management issue,” says Boston employment lawyer Jaclyn Kugell, a partner at Morgan, Brown & Joy. “Employers that implement these preventive measures should ensure that all managers, regardless of their age, are aware of the rules.”
According to Drobac’s research, teen sexual harassment cases filed with the Equal Employment Opportunity Commission have risen from 2 percent of all cases in 2001 to 8 percent in 2004. Over that period the number of all cases filed declined, from 15,475 to 13,136, according to the EEOC. Though Drobac has not been able to obtain updated statistics from government agencies, she expects the numbers to continue to rise.
Referring to 16- to 19-year-olds, the EEOC “has seen, through charges filed and anecdotal evidence, that discrimination is a problem for many in this group,” according to the commission’s fiscal year 2007 performance budget.
More than 7.1 million young adults ages 16 to 19 were employed during the summer of 2004, according to the report. Between 33 percent and 44 percent of teens 16 to 19 worked during the school year from 2001 to 2006.
Research conducted at the University of Southern Maine in 2002 further underscores the potential for liability. According to professor of social work Susan Fineran, 35 percent of some 300 high school students surveyed said they were subjected to sexual harassment at work; more than 60 percent of the harassed respondents were teenage girls.
“There is a different story with teenagers,” says Memphis, Tenn., employment lawyer Jim Mulroy, a partner at Kiesewetter Wise Kaplan Prather. “Most of these are part-time jobs and are not the central focus of their life as it is for an adult. There is lots of playing around and socializing at work. They don’t differentiate the workplace from what they do at school or at the YMCA or at a dance. They have a tendency not to care about those kinds of rules unless it is made important by their employer.”
Because of their informal, festive ambience, restaurants are particularly vulnerable. According to a 2007 article in the industry publication Nation’s Restaurant News, 72 of 127 EEOC complaints involving teens dating back to 1999 were against restaurant companies, whether independent operators or chains and franchisees. All but 11 of the 72 complaints were based on sexual harassment charges. And restaurants paid out more than $7.3 million to settle sexual harassment lawsuits involving teenage workers.
In a November decision, the Chicago-based 7th U.S. Circuit Court of Appeals put the business community on notice that it is no longer enough simply to have a policy and reporting procedure in place. EEOC v. V&J Foods, 507 F.3d 575.
Writing for the court, Judge Richard Posner warned businesses that they need to go beyond the standard set by the U.S. Supreme Court in two 1998 companion cases, Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries v. Ellerth, 524 U.S. 742, to avoid liability in teenage sexual harassment claims. Those two cases set rules for determining when an employer will be liable for sexual harassment committed by its supervisors. They also spelled out a defense that employers can raise in certain circumstances.
Sexual harassment policies and procedures must be written so as to be meaningful and understandable to the workforce, says Dallas lawyer Michael Maslanka, a partner in Ford & Harrison, a national labor and employment firm.
The V&J Foods case arose after a teenage employee of a Burger King franchise in Milwaukee claimed that her manager repeatedly subjected her to unwanted sexual advances. Though the teen repeatedly complained to restaurant managers, her complaints eventually came back to her harasser-manager, who eventually fired her.
“An employer is not required to tailor its complaint procedures to the competence of each individual employee,” Posner wrote. “But it is part of V&J’s business plan to employ teenagers, part-time workers often working the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.”
The 7th Circuit decision is significant “because it says one size does not fit all” when it comes to sexual harassment policies,” says Maslanka. “You have to look at the people in your workforce and make sure that the message is understandable to them. It’s not that the vice president of human resources sitting in the Sears Tower understands; it is whether the teen understands it.”
V&J Foods comes on the heels of a 2006 teen sex harassment case, Doe v. Oberweis Dairy, 456 F.3d 704, in which the 7th Circuit held that a minor’s consent to sex does not operate as a complete bar to a Title VII sexual harassment case. Courts instead have to look to age of consent laws when determining whether consent to sexual activity will have legal weight.
Further, wrote Posner in Oberweis Dairy, “an employer of teenagers is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older, male shift supervisor in circumstances constituting workplace harassment.”
Because there is no consistency among the states as to the age of consent, businesses will need to craft policies that will work in every state where they operate, Drobac says.
Drobac notes that, in addition to the 7th Circuit cases, the EEOC entered into a consent decree in 2006 with Taco Bell Corp., requiring the fast-food chain to adopt and implement a training program with special emphasis on workplace issues that affect youth workers. The decree is unpublished, she says.
Taken together, employment lawyers say, these cases should provide more protections for the teenage workforce.
Many employment lawyers say they are already advising clients to take a second look at their harassment policies and procedures. Maslanka is rewriting policies to put the onus on employees to keep complaining if they do not get an adequate response the first or second time they complain about harassment. Mulroy has seen a client print on paychecks the toll-free number that employees can call to complain about harassment at any time of the day.
Despite such efforts, other lawyers emphasize that employers need to remember the context of a teenage employee-manager’s life. “They are likely socializing with their peers in school in a way that is different from how we as adults interact with our peers at work. Then, they go to the workplace and are expected to adhere to standards of behavior that may not have applied so strictly only three hours before,” Kugell says.
“We are asking a lot of this younger work group, particularly if we don’t clearly explain both the standards of behavior that apply in the workplace and the consequences for violating them.”