The 7th U.S. Circuit Court of Appeals held that a fast food company with many teenaged employees was obligated to formulate employee complaint procedures that could be understood by the average teenager.
V&J Foods owned a Burger King in Milwaukee and regularly hired high school students to work in its fast food restaurant. One of those teenagers, a 16-year-old female, was hired to work after school and on weekends. The 35-year-old general manager of the restaurant, Tony Wilkins, began making suggestive comments to the girl, rubbing up against her and trying to kiss her. The employee rebuffed Wilkins, telling him that she was not interested in him and had a boyfriend.
At that point, Wilkins became hostile and, at one point, fired her. He later rehired her, but the harassment continued.
Although the girl then complained to her shift supervisors and to an assistant manager, no action was taken on her behalf. When she asked for a phone number to contact the company directly, the assistant manager initially told her that he wasn’t sure there was such a number. He eventually provided a number, but it was wrong. Finally, the girl’s mother came to the restaurant and complained to a shift supervisor about Wilkins’ sexual harassment of her daughter. When that complaint was relayed to Wilkins, he promptly fired the daughter, this time for good.
When the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on the girl’s behalf, the lower court dismissed the harassment claim, saying that the girl had failed to invoke the company’s complaint procedure. It also dismissed a retaliation claim, finding that firing the girl because of her mother’s intervention was not actionable retaliation because the mother’s complaint was not a “protected activity” under Title VII.
The 7th Circuit reversed the lower court’s decision on both counts. It then went on to discuss the issue of a “reasonable mechanism” for employee complaints, pointing out that such reasonableness depends on, among other things, “the capabilities of the class of employees in question.” If, for example, the employees cannot speak English, a complaint procedure provided only in English is not reasonable.
In this instance, V&J Foods adopted complaint procedures that, according to the court, were “likely to confuse even adult employees,” including unclear designations of those to whom complaints should be made. For example, all complaints were to be forwarded to the general manager. If, as in this instance, the complaint was about the general manager himself, he was obligated to “turn himself in” to the company, which Wilkins did not do. Further, the hotline number included with employees’ paychecks was designated to be used if an employee wanted to “comment” about the company, and did not provide specific information on how employees should report “complaints.”
EEOC v. V&J Foods Inc ., 7th Cir., No. 07-1009 (Nov. 7, 2007).
Professional Pointer: The court found that while an unreasonably costly complaint mechanism might not be reasonable, a company of V&J’s size could have done more to create a clear path for employee complaints of discrimination. Therefore, while an employer is not required to tailor a complaint procedure to the limitations of each and every employee, such a procedure must be reasonably accessible to the average employee of that particular employer for the company to prove that it has established and implemented an effective complaint procedure.
Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.
Editor’s Note: This article should not be construed as legal advice.