Sexual Harassment—Allegations of A Hostile Work Environment With A Side of Quid Pro Quo

If you thought sexual harassment abated during COVID-19, think again.

The Equal Employment Opportunity Commission (EEOC) continues to follow its strategic plan and filed suit this week against one Virginia-based company that owns several IHOP franchises for a manager’s alleged sexual harassment of female employees.

Particularly notable, several of the female employees are teenagers.

Specifically, the EEOC alleged:

  • The manager asked “teen workers to show their breasts to him”;
  • The manager exposed himself to a teen worker;
  • The manager made sexual comments about female employees’ clothes and bodies;
  • The manager called them by denigrating sexual epithets and asked intrusive questions about their personal relationships;
  • This manager showed one teen worker an explicit sexual video;
  • The manager solicited employees for sex, punishing the ones who rejected his advances and providing “preferential treatment” to those who gave in to them.

What kind of preferential treatment? The complaint alleges that the manager made decisions as to leave, scheduling, shift and table assignments, and other terms of employment.

Wait, Didn’t The Company Have An Anti-Harassment Policy or HR or….?

Nope. Not according to the lawsuit. There was no effective anti-harassment policy.

Moreover, the employees received no training on how to report harassment. Nevertheless, the EEOC alleged that one employee called the corporate office to complain, yet the company did not stop the manager’s behavior.

A Refresher About Sexual Harassment

Let’s start here: sexual harassment is a form of sex discrimination. 

The EEOC, the federal agency that enforces the anti-discrimination laws, defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, as well as offensive remarks about a person’s sex.” 

When does it become illegal? Harassment violates the law—Title VII of the Civil Rights Act of 1964—when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Break The Sexual Harassment Types Down, Please!

To constitute a hostile work environment, first, sexually charged comments themselves must be based on a protected characteristic, such as gender—the harassment must be because of the target’s sex, including pregnancy, sexual orientation, or gender identity.

Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.

Regarding sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, epithets or name calling (based on one’s gender, body parts, romantic life, etc.); physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs; offensive objects or pictures, or interference with work performance.

Do we have that here with allegations that the manager requested that employees expose themselves? Check.

Do we have allegations of humiliating sexual epithets? Check.

You can see where this is going.

Image by Free-Photos from Pixabay

Quid Pro What?

The second type of unlawful harassment, quid pro quo harassment, occurs when a manager, supervisor, or executive (any person with the authority to hire or fire) offers or even hints to provide another employee with a promotion, raise, or even a job or other benefit if that employee will provide some kind of sexual favor.

It also occurs when a manager or other authority figure threatens to terminate or take some other adverse action against an employee if the employee does not acquiesce to performing some kind of sexual favor.

Here, the lawsuit alleges that the manager gave preferential treatment to employees in exchange for sex-based favors and penalized those who did not.

Offers of better pay, promotions, and protection from discipline in exchange for sexual requests constitutes quid pro quo harassment. 

What Does The EEOC Have To Say About Sexual Harassment, Especially In The Restaurant Industry

I told you way back in 2017, in this post:

Sexual harassment is always unacceptable and unlawful in any workplace,” said a regional attorney in the EEOC’s Charlotte District Office. “When a teenager is a victim, the abuse is all the more unconscionable.  Very young people are among the most vulnerable to this kind of misconduct, and the EEOC is committed to putting a stop to it.

Yet, this behavior, and worse, continues in 2021, seemingly unabated.

EEOC Philadelphia Regional Attorney Debra Lawrence explained in this recent case:

Unfortunately, sexual harassment remains a serious problem in the restaurant industry,…The EEOC is committed to protecting all workers from sexual harassment if an employer fails to do so.

EEOC Philadelphia District Director Jamie R. Williamson added, “All employees have the right to earn a living without being subjected to unwelcome sexual advances, assaults or comments. Sexual harassment is especially pernicious when a manager harasses teen workers.”

Yes, indeed. So what is well-meaning employer to do?

Best Practices for Employers

If these allegations prove true, this employer should consult our blog here at FisherBroyles because we’ve told you:

  1. Have a clear anti-sexual harassment policy and investigation procedure set forth in your employee handbook, and follow your policy.
  2. Your anti-harassment policy should include specific misconduct and examples, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, etc. It should also contain specific complaint and investigation procedures.
  3. Maintain and enforce a strong anti-retaliation policy. Clarify for your employees that if an employee reports sexual harassment, (s)he/they will not suffer retaliation. This encourages reporting, which is beneficial for your company’s workplace morale, attrition levels, and reputation.
  4. f you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against.
  5. Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Have clear standards for discipline.
  6. Maintain a top-down culture of respect, anti-retaliation, and intolerance of unlawful harassment.
  7. Consider your organizational culture. As I noted here, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, articulate these beliefs, and hold this same expectation of others in the workplace.
  8. Invest in regular, interactive training (see here and here) tailored to your workplace and promoted by senior leaders.
  9. Thoroughly document any employee’s claim of sexual harassment as well as the steps you take to investigate and correct it, if warranted.

Preventing workplace harassment through systemic litigation and investigation remains one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan. You can understand why.

Enough is enough.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.