Just days after reconvening its Select Task Force on Harassment with a public meeting titled “Transforming #MeToo Into Harassment-Free Workplaces,” the EEOC marched into seven different federal district courts, from Los Angeles, California to Mobile, Alabama and in between, and said “#MeToo.”
In a statement about the meeting, EEOC Commissioner Chai R. Feldblum remarked that the challenge for the EEOC “is to use this #MeToo moment well”, observing that the EEOC had “the attention and commitment of the range of different actors in society that we need … [to] channel that energy to create significant and sustainable change.”
So what does this change look like? And what should employers be mindful of as they try to achieve compliance and reduce litigation risk?
For starters, as the recent public meeting and surge of EEOC lawsuits indicates, the #MeToo movement has gained traction at the EEOC. Of the seven lawsuits filed the week of June 11, six involved allegations of “traditional” male-on-female sexual harassment, similar to the harassment alleged by scores of women in the #MeToo movement.
Another takeaway: Three of the seven lawsuits involved some kind of alternative working arrangement such as use of staffing agencies, independent contractors, or a franchise model. As we’ve discussed before, joint employer liability is already an area of concern for companies in a number of contexts—and it appears that the EEOC has joint employment on its radar as well.
Turning to the complaints filed by the EEOC, here’s what they allege, and why it matters for employers:
- EEOC v. Tapioca Express, Inc., No. 3:18-cv-01217 (S.D. Cal.) (Filed June 11, 2018). The EEOC alleges that the owner of two milk tea franchises sexually harassed two female employees by brushing up next to them and making other unwelcome physical contact. The complaint includes the corporate franchisor as a defendant, based on the allegation that the franchisor had the “ability to prevent and correct the harassment” because it had received and responded to a previous employee’s harassment charges against the same franchise owner. This case highlights the joint employment risks that exist in the franchisor-franchisee relationships.
- EEOC v. Sierra Creative Systems Inc., No. 2:18-cv-05185 (C.D. Cal.) (Filed June 12, 2018). The EEOC alleges that a printing and mailing company allegedly failed to prevent sexual harassment by a supervisor toward female employees at multiple locations. The alleged harassment included brushing up against women with his private parts, grazing their breasts, and using derogatory words such as “whores” and “cows” to refer to women. The complaint also pleads a separate claim for retaliation—which is always a risk that companies faces when responding to a harassment complaint. Specifically, the EEOC alleges that management responded to the women’s internal complaints by cutting their hours and moving them to less desirable positions in the company.
- EEOC v. Total Maintenance Solutions, Inc., No. 1:18-cv-00413 (S.D. Ohio) (Filed June 13, 2018). The EEOC alleges that the owner of a commercial cleaning company sexually harassed his office manager, including through unwanted touching, sexual comments, and repeated phone calls to her at night, after work hours, in which he suggested a sexual relationship. This case also underscores the possibility of retaliation claims, as the EEOC alleges that the owner responded to the office manager’s complaints about his behavior by asking her to clean the restroom (which was not part of her job description), and firing her when she refused to do so.
- EEOC v. New Prime, Inc., No. 6:18-cv-03177 (W.D. Mo.) (Filed June 13, 2018). The EEOC alleges that defendant trucking company created a hostile work environment by allowing one of its drivers to continue riding with female drivers even though the company knew he had sexually harassed others before. The company had suspended this driver, but continued to pay him as an independent contractor. This case highlights the fact that businesses may face harassment liability based on the actions of contractors, not just employees.
- EEOC v. Real Time Staffing Services, Inc., No. 1:18-cv-00541 (D. N. Mex.) (Filed June 13, 2018). The EEOC alleges that a staffing company failed to prevent the alleged sexual harassment of a group of their female employees who were placed at the Albuquerque Police Department’s Inspection of Public Records Act Unit. Although the women repeatedly complained about the alleged misconduct, the staffing company failed to take timely action to prevent or remedy it. This case serves as a reminder that employers, including staffing companies, may face liability for the conduct of employees of other companies on other job sites, by failing to adequately respond to complaints by their employees.
- EEOC v. G2 Corporation, No. 3:18-cv-01524 (N.D. Tex.) (Filed June 13, 2018). The EEOC alleges that a screen door maker subjected a female warehouse employee to harassment by her production manager and the company’s vice president. The complaint alleges that the production manager followed the female employee into a restroom, groped her, and attempted to physically force himself on her. It also alleges that the vice president made graphic sexual comments toward the employee, including asking her for sexual favors. Although these are, of course, just allegations to which G2 has yet to respond, the fact they were made against individuals at multiple levels of management underscores that companies should look at harassment compliance holistically and not just focus on relationships among peers and direct supervisors.
- EEOC v. Master Marine, Inc., No. 1:18-cv-00269 (S.D. Ala.) (Filed June 13, 2018). The EEOC alleges that a shipbuilder took no action when one of its employees sexually and racially harassed one of his male colleagues who was Asian. The complaint also alleges that the same employee, a white male supervisor, made harassing comments, including racial slurs toward three black employees. This case involves the sort of “intersectional harassment” that the EEOC’s Select Task Force on Harassment has singled out as one of its goals (see this June 2016 report, in which the task force observed that there “is increasing evidence that targets of harassment often experience mistreatment in multiple forms, such as because of one’s race and gender, or ethnicity and religion.”)
Employers who have been following the #MeToo movement know that this is a watershed moment. What’s more, through these recent lawsuits, the EEOC is putting the enforcement might of the lead federal enforcement agency behind the effort to substantially reduce workplace harassment and put employers on notice that it will aggressively pursue many more of these cases in court. Navigating a landscape of shifting laws and cultural norms requires thoughtfulness, foresight, and collaboration with experienced counsel.
We will continue to watch developments in this area from the EEOC and other agencies as well as the plaintiffs’ bar and report back, so stay tuned.