Alaska Employment Law

Employee counsel frequently hear about complaints of sexual harassment from teenage employees at fast food outlets.  Today’s opinion by Judge Richard Posner in EEOC v. V & J Foods, Inc., 2007 WL 3274364 (7th Cir. Nov. 7, 2007), offers useful information to both teenage employees and fast food operators. 

Complaint procedures for minors:  First, Posner discusses the Faragher-Ellerth defense to sexual harassment, as it pertains to teenage employees:

The [complaint] mechanism must be reasonable and what is reasonable depends on ‘the employment circumstances,’ . . . and therefore, among other things, on the capabilities of the class of employees in question.   If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet. . . . An employer is not required to tailor its complaint procedures to the competence of each individual  employee.  But it is part of [the owner’s] business plan to employ teenagers, part-time workers often working for 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 . . . Here as elsewhere in the law, the known vulnerability of a protected class has legal significance. 

(Citations omitted.)

Posner then faults the company for referring employees with complaints to a non-existent/confusing titled position, for equating a “comments” hotline with a “complaint” department, and for putting the hotline number in an inconspicuous place on employee paychecks.  

Protected activity by parent/guardian: Next, Posner holds that statutory protections against retaliation must take into account the legal incapacity of minors.  (The company had argued that the literal language of Title VII doesn’t forbid retaliation against a minor when the protected activity - the protest - was undertaken by the employee’s mother.)

People often act through agents, such as lawyers; and 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.  . . . [The minor’s] mother acted as her daughter’s agent in confronting [the supervisor] about the sexual harassment of her daughter.  In retaliating against [the minor] for her mother’s intervention, [the supervisor] was retaliating against the principal, her daughter, just as if [the minor’s] lawyer had complained to [the supervisor] about [the supervisor’s] harassing his client and he had responded by firing [the minor].   

(Citations omitted.)

UPDATE: Here are Paul Mollica’s comments.