Stites & Harbison, PLLC

If one of your employees wants to complain about illegal harassment, are your complaint procedures reasonable?  Do your employees know about them, and do your employees understand them?  If your answers are NO, you may want to reevaluate your complaint procedures.

Employers know they can avoid liability under Title VII for employee harassment if the employer has implemented reasonable complaint procedures, and the victim failed to complain.  See Faragher v. City of Boca Raton(1) and Burlington Industries, Inc. v. Ellerth(2).  However, employers may not consider what is meant by "reasonable" complaint procedures.  The U.S. Court of Appeals for the 7th Circuit recently gave some guidance.

In EEOC v. V&J Foods, Inc.,(3) the court stated that what is reasonable depends upon the employment circumstances, such as the capabilities of the employees.  For example, if your employees cannot speak English, providing complaint procedures only in English would not be reasonable.  Or, if most of your employees are teenagers, like in V&J Foods, your complaint procedures would need to be tailored so that an average teenager could understand them. 

In V&J Foods, a 16-year-old female worked part-time in a fast food restaurant.  When she was sexually harassed by her 35-year-old general manager and offered money in exchange for sex, the teen asked the assistant manager for a phone number to call to complain about sexual harassment.  The assistant manager did not know if he could give her the number, and further, he did not know if there even was such a number.  When the teen's mother came into the restaurant and complained to a shift supervisor, the supervisor claimed ignorance.  However, the shift supervisor later informed the general manager about the mother's intervention.  As a result, the general manager fired the teen.

The EEOC filed suit on the teen's behalf, and the 7th Circuit found the employer liable because it failed to provide "reasonable" complaint procedures.  The court noted that "the company adopted complaint procedures likely to confuse even adult employees."  For example, the procedures provided that all complaints were to go to the general manager, even if the complaint was about the general manager!  After receiving a complaint, the general manager was required to "turn himself in," which, in this case, he failed to do.  The court held that "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."

Bottom Line:  Courts do not require unreasonably costly complaint procedures, and they do not require employers to tailor complaint procedures to every individual employee.  However, courts do require a clear path for employees to complain about illegal harassment, including clear designations of the people or departments to whom complaints should be made.  There are many things an employer can do to create a clear path for complaints, such as posting a complaint hotline number in an employee break room, or clearly identifying a complaint hotline number on employees' paycheck summaries.  Procedures for bypassing a harassing supervisor should be clearly articulated, and procedures should be explained in a language and using words the average employee understands.
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(1) 524 U.S. 775, 807 (1998).
(2) 524 U.S. 742, 765 (1998).
(3) 2207 U.S. App. LEXIS 25856, No. 07-1009 (7th Cir. Nov. 7, 2007).