LEGAL: Harassment remains in the headlines

Jeff Jones

By Jeff Jones
Special to the UCBJ

Harassment remains in the headlines. In just a two day period in June, the EEOC brought eight separate harassment-based lawsuits under a variety of theories. Three of the eight cases allege harassment by owners. All allege sex harassment, but several include explosive racial language as well. And then there is the touching; lots of it. Add in a dash of non-existent policies, training, and investigatory follow-through, and infuse the mixture with a soupcon (or sometimes a gobbet) of apparent retaliatory animus, and it is sure-fire recipe for employer trouble.

A few days earlier, Acting Chair Victoria Lipnic, along with Commissioner Chai Feldblum, reconvened the Select Taskforce on the Study of Harassment in the Workplace, which had issued recommendations in 2016. Since the report’s release, the commission has been busy advocating for and providing employers new training programs that focus on respect and inclusivity rather than legal definitions. The EEOC has still not finalized its Proposed Guidance on Sexual Harassment in the Workplace, and it is unlikely to do so unless and until the President’s   nominees are confirmed and/or there is greater clarity from the courts on hot-button issues like Title VII’s application to sexual orientation discrimination.

Significant portions of the meeting focused on the introduction of legislation at local, state and national levels, including the passage of industry specific measures such as Chicago’s “Hands Off Pants On” Ordinance that requires safety alert buttons and employee protective policies for housekeeping staff. The meeting also spotlighted innovations like third party administered employee complaint platforms. Business owners also presented their own ideas.

Erin Wade, a former lawyer, shared a solution tailored for her mac-and-cheese restaurant. Three years ago she confronted a disconnect between her vision of her business as a safe place for employees and her workers’ reality. She and the staff devised a simple color-coded system. Now, if a staff member reports “yellow” behavior (unsavory staring or creepiness) and requests that a manager take over a table, they do so, no questions asked. “Orange” behavior (comments with sexual undertones) means the manager must take over the table.  “Red” behavior (overtly sexual comments or touching, or repeated inappropriate comments, especially after being told they are unwelcome) means the patron must go.

Lipnic reminded the attendees that the EEOC plays multiple roles – as the agency with expertise, as an educator, and as enforcer. Two days later, the agency’s role was clear: “With the suits filed this week,” Lipnic said, “we are enforcing the law.” It also appears that the EEOC’s harassment enforcement efforts reflect some of the broader #MeToo and Time’s Up storylines.

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One case filed by the EEOC has factual allegations akin to some leveled at celebrity chef Mario Batali in recent months. Brought against Georgina’s Taqueria in Michigan on behalf of sous chef Jessica Wethern and a class of similarly situated female employees, it alleges that chef and owner Anthony Craig engaged in a pattern of egregious verbal and physical sexual harassment. When Wethern complained to Craig, she was allegedly immediately stripped of authority and had her hours cut. Days later, she gave a written complaint to a manager. Ten minutes later, Craig fired her. If Craig had had the benefit of counsel before making this particular employment decision, the advice would likely have been a resounding, “No, chef!”

In California, the EEOC sued Tapioca Express, a small bubble tea franchise chain, and two of its franchisees (with interconnected ownership) for subjecting a class of female employees to sexual harassment. The agency said the owner routinely inappropriately touched young women and made repeated sexual comments. The behavior was reported to Tapioca Express in 2013; however, the franchisor took no action against the harasser/owner. More than two female employees felt compelled to quit as a result of the escalating abuse, the EEOC alleges.

The EEOC Tapioca Express filing falls on the heels of recent near-simultaneous EEOC charges against McDonalds stores by 10 individuals in different cities represented byattorneys from Altshuler Berzon and Outten & Golden LLP. Those complaints are being supported with funding from Time’s Up Legal Defense Fund, administered by the National Women’s Law Center Fund, and are organized with the help of the Service Employees International Union advocacy group Fight for $15. Ironically, the SEIU and Fight for $15 fired or accepted the resignations of several key leaders in the wake of internal sex harassment and misconduct investigations last Fall, just as the #MeToo wave was breaking.

The EEOC’s Birmingham District Office sued Master Marine, Inc., for allowing lead welder Chad Carr to sexually and racially harass a male Asian-American welder at its Bayou La Batre, Alabama, headquarters. The behavior included multiple touchings in the buttocks and genital areas and blatantly racist remarks. The EEOC claims Carr also racially harassed African American employees, regularly referring to them as “n—-r,” “monkey,” and “boy,” and that he threatened to discipline at least one of them. The employees made oral and written complaints regarding Carr, who left the company for unrelated reasons at least six months after the behavior is alleged to have begun. Expect questions about Carr’s supervisory status, the timing of the company’s knowledge of his behavior, and the conduct of its investigation (if any) to be important in this case.

The Los Angeles District Office filed suit against Sierra Creative Systems, alleging it subjected a class of mostly Spanish speaking female workers to ongoing verbal and physical sexual harassment and retaliation. The supervisor rubbed the backs of female employees while making comments about their underclothes and “accidentally” grazed their breasts with his elbows while they were working at printing machines. The EEOC also charged that employees were called (in Spanish) “whores,” “sluts,” “cows” and “donkeys,” “useless,” “stupid,” and “ignorant.” Acquiescence to his conduct was demanded in exchange for shift assignments and hours.  Despite repeated oral and written complaints (even notarized ones) the company did nothing to stop this abuse, and those who reported the misconduct were told that the supervisor was just “machismo,” and were subjected to harassment and retaliation.

Real Time Staffing, Inc., was sued for allegedly allowing a group of female employees on temporary assignment at the Inspection of Public Records Act Unit of the Albuquerque Police Department to be harassed. The EEOC said the women were subjected to pervasive comments about breasts and buttocks; referred to as “prostitutes,” “sluts” and worse. It also claimed they were grabbed on their breasts, hit on their rears, had objects thrown at them, and that one was even kicked in the vaginal area. That case arises in the middle of a separate whistleblower lawsuit brought by the ousted public records supervisor who is at the heart of the underlying facts of this case.

The agency’s Dallas District Office in turn sued G2 Corporation, doing business as Screen Tight, for harassment and constructive discharge. The company had no harassment policy or training. Marta Luna claims she was subjected to unwelcome physical and verbal harassment at the hands of her production manager and another high-level corporate officer. The complaint alleges the manager made up a task of cleaning restrooms in order to create an opportunity to make sexual comments and attempt to force himself on her. The attempted assault was interrupted only by the surprise arrival of a coworker. The EEOC said that the vice president also made graphic, intimidating comments to her, and that the production manager made a physical gesture threatening harm at her the next day. She quit thereafter.

The EEOC’s St. Louis District Office sued Prime Inc., a large trucking company. The EEOC stopped using the alleged harasser as a trainer because of his behavior but kept him on as an “independent contractor” and continued providing him with Prime employees as co-drivers. It did not warn a new female driver about the harasser’s past misconduct or warn him not to harass her. For six weeks he allegedly talked nonstop about sex in graphic and violent terms and told her she would lose her job and commercial driver’s license if she reported his behavior.

The EEOC also sued Total Maintenance Solutions, a Cincinnati-based cleaning company, for allegedly subjecting an employee to a sexually hostile work environment and retaliation. Aaliyah Thomas endured unwanted touching, sexual comments, overtures, ogling, hugging, comments about her body and repeated calls at night during non-work hours suggesting a sexual relationship. She complained repeatedly to the harassing owner, including by text, and was subsequently fired in retaliation for her complaints, the EEOC said.

Of course, all of the facts in the above paragraphs are just the “facts” as alleged in the complaints. Regardless of the ultimate outcome of these cases, this much remains clear- employers need to set clear boundaries for behavior, create policies and procedures that take the unique circumstances of their workforces and environments into account, and follow through with swift and appropriate consequences for anyone who violates expectations.

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