Drafting Effective Complaint Procedures

When a supervisor engages in discriminatory conduct that causes an employee to suffer a tangible employment loss, such as a termination or loss of pay, the employer is strictly liable for its supervisor’s actions. Where the supervisor’s actions do not result in a loss, or the discrimination is conducted by a co-worker, an employer may avoid liability by raising an affirmative defense that it had in place an effective complaint procedure, and that the employee unreasonably failed to use the procedure to end the discrimination. In a recent case the Court of Appeals for the Seventh Circuit held that in order for a complaint procedure to be “effective” it must be understandable to the average employee working for the employer. EEOC v. V&J Foods, Inc., 507 F.3d 575 (7th Cir. 2007).

V&J Foods primarily hired teenagers, often in their first job, to staff company owned fast food establishments. When a young female employee suffered sexual harassment by the restaurant’s general manager she reported the abuse to her shift supervisor and assistant store manager. When her efforts failed, her mother complained to the shift manager. The employee was fired immediately thereafter and filed a complaint with the EEOC claiming harassment and retaliation.

The company raised an affirmative defense stating the employee failed to follow the company’s complaint procedure because she had not complained to the “district manager.” The court found the procedure was ambiguous and difficult for the average teenager to follow. While the court noted an employer need not tailor its policies to the competencies of each employee, it must be understandable to the general class of employees covered by the policy.

Here the policy required reports be made to the “district manager” but provided no clear way to contact him. The policy also failed to provide a bypass so that complaints cold be lodged with someone other than the harasser. As such, the court found the employer’s defense inadequate.

The court also dismissed the company’s argument that it should not be held liable for retaliation because the employee’s mother made the actual complaint leading to the dismissal, not the employee. The court made clear that agents acting on behalf of employees, such as the parents of minor children or attorneys, who bring concerns to management’s attention trigger the anti-retaliation provisions of Title VII.

This case highlights the need to have clearly written policies understandable to the average employee working in the organization as ambiguous policies may prevent employers from raising an important affirmative defense. It also indicates that complaints received from third parties such as attorneys or parents must be taken seriously and treated as if the employee had made the complaint personally.