Publications: Minors in the Workplace—Special Protections, Special Challenges

To acquire a complimentary copy of a new white paper, 4 Steps to Meeting the Special Challenges of Minors in the Workplace, contact Nick Anaclerio at 312.977.4375 or nanaclerio@uhlaw.com.

To read the original Client Update in PDF format, please click the Related Files link.

Minors have always enjoyed special legal protections, most would agree rightfully so, and a pair of Seventh Circuit decisions underscores the importance of employers recognizing that special responsibilities under Title VII go along with employing minors.

In Doe v. Oberweis Dairy,¹ the Seventh Circuit reversed a district court finding that the plaintiff, a minor ice cream scooper, was not harassed because “she welcomed” the sexual advances of a 25-year-old male supervisor. The Seventh Circuit found that by making this determination against the minor plaintiff, the district court “stepped out of the proper role of a judge asked to decide a motion for summary judgment,” and held that “consent to sexual relations with a coworker or supervisor is not a defense in a Title VII suit for sexual harassment brought by a plaintiff who was underage when the conduct alleged to constitute harassment occurred.” The Seventh Circuit sounded this clear warning to employers:

“An employer of minors is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older, male shift supervisor in circumstances constituting workplace harassment.”

Just as the minor plaintiff Jane Doe’s “consent” was no defense to the criminal statutory rape charge on which her supervisor was convicted before she filed her civil suit for sexual harassment, battery and intentional infliction of emotional distress against their employer, that “consent” was legally ineffective as a defense to her Title VII suit.

The Seventh Circuit’s November 7, 2007 decision in EEOC v. V&J Foods, Inc. forcefully amplified its Doe v. Oberweis discussion of employers’ responsibilities to minor workers.² In V&J Foods, the court again reversed a summary judgment for a defendant employer, the owner of a fast food restaurant whose 35-year-old male general manager was accused of sexually harassing a 16-year-old girl working “her first paying job.” The manager allegedly fired the plaintiff for resisting his sexual advances and in retaliation for her and her mother’s complaints about him. The court noted that the “main grounds on which the district court dismissed the suit were not that [the plaintiff] had not been harassed [but] that she had failed to invoke the company’s procedure for complaining about harassment . . . and that firing her because of her mother’s intervention was not actionable retaliation . . .”

The V&J Foods court quickly dispensed with the district court’s ruling that the plaintiff’s harassment claim was defeated by her failure to invoke her employer’s complaint procedures. It cited the Supreme Court’s now-familiar Faragher/Ellerth Title VII rule that if, as in the V&J Foods case, a supervisor’s harassment culminates in a firing or other adverse job action, his employer’s liability is strict, irrespective of what his victim did or did not do to seek her employer’s protection.³ The V&J Foods court went on to state that the “presence or absence of an adequate complaint machinery is relevant only to her claim for damages,” since whether the plaintiff sought protection from harassment could be relevant to whether she acted reasonably to limit the harm that harassment caused her. The V&J Foods court then sounded another plain warning to employers who write and implement harassment complaint procedures for a workforce including minors:

“In this case the employees who needed to be able to activate the complaint procedure were minor females working in a small retail outlet. . . . Knowing that it has many minor employees, the company was obligated to suit its procedures to the understanding of the average minor. . . .Here as elsewhere in the law the known vulnerability of a protected class has legal significance . . . Ignoring this point, the company adopted complaint procedures likely to confuse even adult employees.”

Predictably, the V&J Foods court also reinstated the plaintiff’s retaliation claim. It found that neither her nor her mother’s alleged failure to follow V&J’s complaint procedure disqualified their complaints about the supervisor as protected bases for a retaliation claim.

The Doe v. Oberweis, and EEOC v. V&J Foods cases require employers to apply sound judgment to their choices of supervisors and careful monitoring of the supervisors whom they authorize to supervise minor employees. They also require employers to thoughtfully consider the procedures they adopt to empower those minor employees to get protection from supervisor misconduct. A now-ingrained principle of workplace harassment law is that supervisors’ can exploit their authority over other workers, particularly younger, less sophisticated and more vulnerable minor workers. So supervisors must be carefully chosen and diligently monitored. Minor workers’ inexperience must be considered in determining whether they have been given reasonable mechanisms to facilitate their self-advocacy and self-defense against workplace harassment. A failure to properly screen and select, then diligently monitor supervisors or a failure to provide minor workers with understandable, effective complaint procedures can have disastrous consequences for employees and employers alike.

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¹Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006).
²EEOC v. V&J Foods, Inc.,__ F.3d __, 2007 WL 3274364 (7th Cir. 2007)
³Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Elerth, 524 U.S. 742 (1998).