Turning a Blind Eye Can Cost a Company High Dollar Settlements

Recently, the EEOC laid a heavy hand on Green Apple, LLC, DBA Applebee’s Grill and Bar, for allowing two sisters to be sexually harassed for months by an assistant manager, which included physical groping, soliciting sex and enduring offensive sexual comments.  The sisters allege that despite multiple complaints to management, and the fact that many of these incidents were witnessed by members of management, the harassment was allowed to continue with no investigation or corrective action taken by the company.

The company was ultimately held responsible for creating a hostile work environment and was mandated to pay a $75,000 monetary settlement to the sisters. In addition, the company entered into a two-year consent decree to develop an auditing process to assist the company identify and address sexual harassment violations or potential violations; provide anti-harassment training to all area directors, general managers, assistant general managers, and assistant managers; and to report to the EEOC all complaints of sex-based conduct or comments made by employees.

In legal terms, this is called Vicarious Liability, which means an employer is liable for a hostile work environment created by a supervisor, manager or an individual perceived to have authority over employees.

Under the vicarious liability doctrine, an employer is responsible for the acts of its supervisors, and employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

You may be asking, “Can this happen to me”? How can I protect myself, if I can’t watch over employees all the time?

Good question! The answer, Affirmative Defense.

According to the EEOC, the Supreme Court held in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if it does not (as in the Applebee’s case), the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

  • the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
  • the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Let’s review. In the Green Apple LLC case, there were no tangible employment actions taken against the two sisters.

What are examples of tangible employment actions?

  • hiring and firing;
  • promotion and failure to promote;
  • demotion;
  • undesirable reassignment;
  • a decision causing a significant change in benefits;
  • compensation decisions; and
  • work assignment.

If Applebee’s had established an Affirmative Defense, they may have emerged unscathed.

You know you can’t always control employee actions, however, the disturbing factor in this case, is that management was aware of these violations and did nothing about them.

Had the company taken precautionary measures to prevent harassment, and swiftly took action to stop the harassment, they may have avoided a lawsuit.

How Do You Establish an Affirmative Defense?

Establish an Anti-Harassment program that is strongly supported by owners, executives and management, which includes:

  • An Open-Door Policy
  • Establish a written Anti-Harassment Policy
  • Anti-Harassment Training for managers, supervisors and employees
  • Establish a reporting procedure and/or an Employee Complaint Hotline
  • Make it clear to management they will be held accountable for not taking appropriate corrective action if they become aware of sexual harassment or potential harassment
  • Condemn Retaliation
  • Conduct thorough investigations and take swift corrective action to stop harassment and keep it from happening in the future
  • Create a harassment-free work environment that is inclusive, respectful and professional. Recently, the EEOC laid a heavy hand on Green Apple, LLC, DBA Applebee’s Grill and Bar, for allowing two sisters to be sexually harassed for months by an assistant manager, which included physical groping, soliciting sex and enduring offensive sexual comments.  The sisters allege that despite multiple complaints to management, and the fact that many of these incidents were witnessed by members of management, the harassment was allowed to continue with no investigation or corrective action taken by the company.

The company was ultimately held responsible for creating a hostile work environment and was mandated to pay a $75,000 monetary settlement to the sisters. In addition, the company entered into a two-year consent decree to develop an auditing process to assist the company identify and address sexual harassment violations or potential violations; provide anti-harassment training to all area directors, general managers, assistant general managers, and assistant managers; and to report to the EEOC all complaints of sex-based conduct or comments made by employees.

In legal terms, this is called Vicarious Liability, which means an employer is liable for a hostile work environment created by a supervisor, manager or an individual perceived to have authority over employees.

Under the vicarious liability doctrine, an employer is responsible for the acts of its supervisors, and employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

You may be asking, “Can this happen to me”? How can I protect myself, if I can’t watch over employees all the time?

Good question! The answer, Affirmative Defense.

According to the EEOC, the Supreme Court held in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if it does not (as in the Applebee’s case), the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

    • the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
    • the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Let’s review. In the Green Apple LLC case, there were no tangible employment actions taken against the two sisters.

What are examples of tangible employment actions?

    • hiring and firing;
    • promotion and failure to promote;
    • demotion;
    • undesirable reassignment;
    • a decision causing a significant change in benefits;
    • compensation decisions; and
    • work assignment.

If Applebee’s had established an Affirmative Defense, they may have emerged unscathed.

You know you can’t always control employee actions, however, the disturbing factor in this case, is that management was aware of these violations and did nothing about them.

Had the company taken precautionary measures to prevent harassment, and swiftly took action to stop the harassment, they may have avoided a lawsuit.

How Do You Establish an Affirmative Defense?

Establish an Anti-Harassment program that is strongly supported by owners, executives and management, which includes:

    • An Open-Door Policy
    • Establish a written Anti-Harassment Policy
    • Anti-Harassment Training for managers, supervisors and employees
    • Establish a reporting procedure and/or an Employee Complaint Hotline
    • Make it clear to management they will be held accountable for not taking appropriate corrective action if they become aware of sexual harassment or potential harassment
    • Condemn Retaliation
    • Conduct thorough investigations and take swift corrective action to stop harassment and keep it from happening in the future
    • Create a harassment-free work environment that is inclusive, respectful and professional