Library Law: Sexual Harassment Complaint Procedures

By Gerard E. Dempsey and Janet N. Petsche

In EEOC v. V & J Foods Inc. , the Seventh Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana and Wisconsin) rejected an employer's argument that the employee unreasonably failed to use the company's complaint procedure to report sexual harassment.  This case points out that an employer's sexual harassment prevention policy and complaint procedure must be responsive to the needs of the particular workforce of that employer.

The employee was a 16-year-old girl working at her first "for pay" job at a fast food restaurant.  The general manager was a 35-year-old bachelor who was having sexual relations with other female employees.  He made suggestive comments to the teenage employee, rubbed against her, attempted to kiss her and offered to pay her to go with him to a motel.  She refused and so the general manager fired her for a trumped up reason.  She was rehired but the sexual harassment resumed.

The employee made repeated complaints to her shift supervisors and to the assistant manager, both of whom were subordinate to the general manager, but received no effective assistance.  Eventually, the assistant manager gave her a telephone number for her use to complain about the sexual harassment, but it was a wrong number.

When the employee's mother complained to her daughter's shift supervisor about the general manager's harassment, the shift supervisor told the general manager, who then fired the employee on the basis that she had improperly involved her mother in the matter.

The Court of Appeals noted that an employer can totally avoid liability for the sexual harassment of one of its employees by another employee, by creating a reasonable mechanism by which the victim of harassment can complain to the employer and get relief, at least when the victim has failed to follow that harassment policy.  However, as the Court of Appeals noted, if the harasser is a supervisor and the sexual harassment takes the form of firing or taking other employment action against the victim, the employer’s liability is strict.  In that case, the presence or absence of an adequate complaint policy is relevant only to the victim’s claim for damages for the harassment that she suffered, and does not defeat her claim for having been unlawfully harassed.

The Court of Appeals pointed out that the sexual harassment policy must be reasonable, and that what is reasonable depends on the employment circumstances, including the capabilities of the class of employees in question. For example, if the employees speak only Spanish, explaining the employer's harassment policy to them in English would not be reasonable.

The employer is not required to tailor its harassment policy to the competence of each individual employee.  However, in this case, since the employee in question and other employees were teenage girls, the Court of Appeals ruled that the employer was obligated to suit its sexual harassment policy to the understanding of the average teenager.  The Court of Appeals further stated that any harassment policy that includes no assurance that harassing supervisor can be bypassed in the complaint process is unreasonable as a matter of law.

The Court of Appeals suggested posting in the employees' room in the restaurant a brief notice that an employee who has a complaint about sexual harassment or other misconduct should call a toll-free number specified in the notice, where that number would ring in the office of a human relations employee of the employer and the receptionist would identify the office as that of the employer's human relations personnel.

Libraries should periodically review their sexual harassment and other discrimination policies and procedures, giving due consideration to the unique needs of their particular workforce.  Further, they should train their supervisors and managers regarding the handling of complaints of harassment or discrimination, and of how to avoid retaliatory conduct against the alleged victims.  Libraries should also reiterate in plain language the consequences for failing to adhere to the library's anti-harassment policy and for retaliating against employees who present complaints of harassment or discrimination.

Gerard Dempsey and Janet Petsche are partners with the law firm of Klein, Thorpe & Jenkins, Ltd. which is an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia, Orland Park.  The firm concentrates in the representation of local libraries, Library districts and Library systems, as well as other local governmental units.

Published February, 6, 2008 in vol. 2, iss. 3 [View]