Friday, January 30, 2009

Lesson for Employers: Never Ignore a Complaint of Sexual Harassment

The Cheesecake Factory, Inc. learned this the hard way when they were recently sued by the EEOC for failing to respond to complaints by male Cheesecake Factory workers that they were being harassed by other male co-workers.  The complaint in this class action alleges that the male workers were continuously harassed since 2004 by other male employees.  The EEOC contends that groups of male employees would sexually assault other male employees and some would grab the male workers crotch area and also go behind them and “grind” up against them as if simulating a sexual act.  The male employees complained to management at the restaurant but management ignored the complaints and allegedly did nothing.  The EEOC attorney for the plaintiffs stated that “[a]ll employees, both men and women, have a right to work in a harassment free workplace”. 

The lesson for employers is clear.  When employees complain about harassment the law requires the employer to take action to eliminate the harassment and ensure that the workplace is harassment free.  The employer must commence an investigation and communicate the results of that investigation to the complainant and the accused.  The employer must then take “prompt corrective action”. Such action can include disciplining the harassers, up to and including, termination.  Depending on the severity of the harassment, prompt corrective action could simply involve a written disciplinary warning.  It really depends on the facts and circumstances of that individual case.  What is most important is that the employer take prompt action that successfully stops the harassment. 

This is true whether the harassment is between members of the opposite sex or the same sex.  In 1998, the US Supreme Court in the case of Oncale vs. Sundowner Offshore Services held that members of the same sex who harass each other are engaging in sexual harassment and that sexual harassment does not have to occur between members of the opposite sex.  So employers should be careful to not ignore complaints of sexual harassment even if they occur between same-sex employees.  Always take complaints of sexual harassment seriously and act immediately to eliminate any possible harassment in your workplace. 

Submitted By:  Melissa Fleischer, Esq.
                HR Learning Center LLC
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