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Generally, one does not associate cheesecake with guidance to charter schools on personnel matters. Unfortunately, a Cheesecake Factory right here in Arizona provides the perfect opportunity to review what should and should not occur when employees make allegations of sexual harassment. This article will address the issues that arose in the Cheesecake Factory case and how you can avoid making the same mistakes.
While Bryce Fitzpatrick was working at the Cheesecake Factory, he claims that he was attacked more than 20 times by coworkers. The first time one of these attacks occurred, Fitzpatrick was inside the produce walk-in refrigerator and 10 or more male employees entered the walk-in refrigerator and shut off the lights. Fitzpatrick was then subjected to simulated sexual assault.
Fitzpatrick eventually contacted the police, but no charges were filed because the allegation did not “rise to the level of a criminal sexual offense.” When the police interviewed the employees, they described the incidents as “initiation, joke, kitchen games, hazing, manhandling, horseplay, and normal joking activity among Hispanic cooks.”
Manager Tim McIntosh contacted top management after he found Fitzpatrick being held down and assaulted by coworkers. When another manager later reported to McIntosh that another incident had occurred, McIntosh sent the workers involved home. However, the district manager brought in each of the employees and spoke with them individually, and all were allowed to return to work.
Fitzpatrick finally contacted an attorney after he was held down by a group of dishwashers, cooks, and food preparers. Fitzpatrick claimed that the coworkers stuck their fingers in his mouth, called him sexually derogatory names, and left scratches on his neck. This attack, Fitzpatrick alleged, was witnessed by the general manager, who did nothing but laugh. Several other employees made similar allegations. The employees filed a complaint with the Equal Employment Opportunity Commission (EEOC).
When the EEOC was unable to resolve the dispute with the Cheesecake Factory, it filed suit (EEOC v. Cheesecake Factory, Inc., CV 08-1207-PHX-NVW). The lawsuit alleged that the Cheesecake Factory ignored employee complaints of sexual harassment. More specifically, the EEOC alleged that the Cheesecake Factory violated Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, which prohibit employment discrimination based on sex, race, color, religion, or national origin. The EEOC alleged that the evidence overwhelmingly demonstrated that the managers knew about the harassment and had actually witnessed employees dragging the victims “kicking and screaming” into the refrigerator. However, the managers failed to do anything to stop the attacks. The Cheesecake Factory denied the allegations.
The Cheesecake Factory settled with the EEOC and agreed to pay $345,000 to six male employees. The Cheesecake Factory will also train its employees and managers about sexual harassment and assign an ombudsman to specifically handle allegations involving sexual harassment.
While the situation at the Cheesecake Factory, if true, would be considered blatant sexual harassment, charter schools can be liable for sexual harassment that is not as blatant. Sexual harassment not only includes unwanted verbal and physical harassment, but also unwanted sexual advances and requests for sexual favors. Simple teasing, offhand comments, or isolated incidents are not considered sexual harassment.
The harassment
must be so frequent or severe that it creates a hostile or offensive work environment or must result in an adverse employment decision. An important issue to keep in mind is that the victim is not necessarily the person harassed. The victim can be anyone affected by the offensive conduct.
There are several lessons that charter schools can take from this case and apply in the school setting.
• If you have not already done so, develop a strong sexual harassment policy and train staff. Ensure that your staff understands the reporting policies.
• Take all allegations of sexual harassment seriously and investigate them immediately. Do not take the position that “boys will be boys” or that your staff is just joking around.
• Follow your policy when employees notify you of sexual harassment. Following your sexual harassment policy will help you avoid future liability.
• Document allegations of sexual harassment. Document the investigation and the actions you have taken to address the harassment.
Remember that sexual harassment is not just male-on-female. It can be female-on-female or male-on-male. Sexual harassment can also be initiated by a coworker; it is not limited to a supervisor and an employee.
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This article is a general discussion of sexual harassment in the workplace, and is not intended to provide legal advice regarding a particular situation. All schools are encouraged to seek specific legal advice regarding Title VII of the Civil Rights Act and any related or overlapping laws.
Jill K. Osborne, Esq., is a partner with the law firm of Udall, Shumway & Lyons. Jill’s practice is primarily focused on school law and employment law. She can be contacted at jko@udallshumway.com or (480) 461-5300. Jill would like to thank Heather R. Pierson, Esq., an associate at Udall, Shumway & Lyons, for her invaluable assistance with this article.
Reprinted from the March 2010 issue of the
Charter School Monthly, www.charterschoolmonthly.org. Used with permission
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