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Retaliation And Sexual Harassment Create Liability Risk For Family Employers

Two class action lawsuits allege McDonald's allowed sexual harassment and hostile working environments for female workers. One lawsuit was filed in Florida against approximately 100 McDonald's corporate-owned restaurants. The other class action was filed in November 2019 in Michigan.

Allegations include sexual assaults, grabbing, and groping by male coworkers and termination of the victims in retaliation for reporting the conduct. Plaintiffs allege McDonald's knew that sexual harassment was creating an illegal hostile work environment yet took insufficient actions to address it. Sheryl Estrada "McDonald's hit with $500M sexual harassment lawsuit" hrdive.com (Apr. 15, 2020).

Commentary and Checklist

Title VII of the Civil Rights Act, which prohibits sex discrimination in the workplace, including in the form of sexual harassment, applies to employers with 15 or more employees; however, the sexual harassment laws in many states apply to every employer, regardless of size. Still other states’ laws apply to employers with five or more employees, so check with your legal counsel regarding your jurisdiction.

Although McDonald’s is a large employer, the same mistakes it is alleged to have made apply to a family employer.

Ignoring reports of sexual harassment and retaliating against those who report it create multiple levels of liability – for allowing the harassment to continue and then separate liability for taking retaliatory steps.

Retaliation claims are particularly risky for family employers. Employers can be held liable for retaliation, even if ultimately it is determined that the underlying complaint of unwelcomed conduct did not rise to the level of sexual harassment.

By creating and enforcing strong sexual harassment prevention policies and procedures, family employers can not only help protect their staff from illegal, unwelcomed conduct, but can also help protect themselves from liability based on the conduct of management or staff employees.

To help reduce exposure, family employers should implement these sexual harassment prevention steps:

·      Have a clear sexual harassment policy in place that protects everyone in the workplace from harassment.

·      Train all staff annually on what constitutes sexual harassment, your harassment policy, and how to report it.

·      Have staff sign an acknowledgment of receipt of the policies and procedures, at hiring, and after every major revision. Make sure, if English is not a staff member’s primary language, that your policies are communicated in a language they understand.

·      Hold all staff to the same rules and standards, regardless of their rank in the organization, and enforce your policy uniformly.

·      Implement an open complaint procedure with several avenues including third party reporting that encourages staff to report harassment before it becomes severe or pervasive.

·      Train supervisory staff on how to prevent and spot sexual harassment; how to intervene in boundary violations before they escalate into sexual harassment; on the duty to report complaints of sexual harassment to the proper individuals; and on how to avoid taking employment actions that can be interpreted as retaliatory.

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