As retail stores and restaurants ramp up seasonal hiring, young workers need to know about legal protections should incidents of discrimination and harassment arise
By Paul Igasaki, IMDiversity.com Featured EEO Columnist
December 2004 – The other day an optician asked my advice about his daughter’s teenage friends who worked for an older professional who was doing “inappropriate” things that made them uncomfortable. He was touching them a lot, the optician said, in ways that could be in and of themselves explained away as accidental, but not with that frequency. The employer asked the teenagers lots of personal questions and finally asked one of them out. They were 16. He was around 70. The optician wondered if the teenagers had rights or if quitting was their only option.
Generally, any workplace rights adults would have would also protect young people. The phenomenon of sexual harassment is about power, and that is nowhere more clear than where the victim is a teenager and the harasser an adult. Employment for young workers is more likely to be low-wage, limited-term and even part-time. The young worker is less likely to be familiar with workers’ rights or company policies. Further, young people are taught to respect their elders, and despite modern cautions that no one can touch you against your will, it is always difficult to take the risk of coming forward. If people experiencing harassment or unfair treatment are underage, they may be reluctant to talk about the problem with adults. When the problem touches on sex, teenagers may not feel comfortable discussing the topic even with their own parents.
The problem of young people being discriminated against extends beyond sexual harassment. Harassment based upon ethnicity, religion or disability is also a serious problem for younger victims. Age discrimination only applies to those over 40 years old, but many who discriminate feel more confident with targets that are underage. In a case involving two deaf teens in Arizona, they were denied stock maintenance jobs at a retail store due, they allege, to their deafness.
So few of the youths who face discrimination come forward. Even if the harassment is very painful, more often than not, they do not want to take the risks or the time to complain. When they do, it is not infrequent that their complaints will be ignored at first, with junior supervisors believing a permanent worker over a temporary student.
When I was at the EEOC, we recognized this problem and prioritized our outreach to educate teenagers and other young people of their rights. The current administration has also made it a priority, calling their program Youth@Work. It is an appropriate and needed program, and I salute my successors in continuing critical education work in this area. Informing teens about their rights and their protection against retaliation is being done in the workplace, in schools and through the media.
During the holidays, many retail stores hire young workers to respond to the hoped-for increase in business. Low-wage, part-time and temporary seasonal positions are important opportunities for entry-level workers and students in between semesters to earn experience and some income. In this environment, with a rapid rise in laborers knowing less about legal protections and corporate policy, incidents of discrimination are more likely to occur. Many industries other than retail sales are affected by this phenomenon, but it is the restaurant business — especially fast food or casual restaurants — at the forefront in the filing of teen discrimination claims.
In fact, the highest profile cases have involved restaurants. In one case, Burger King settled a claim for $400,000 involving sexual harassment of a number of teens working at a St. Louis-area franchise. Groping and vulgar comments were reported by a number of workers. In another case at a Mexican restaurant, a 19 year old male supervisor made a 16 year old female worker come in to work only to discover that she was the only one there. He kissed and touched her against her will. When she complained to the manager, her allegations were denied. When the incident was reported to the police, the supervisor was charged with sexual assault. After EEOC filed suit, the restaurant settled for $150,000 in damages to the worker and $150,000 to support public education against sexual harassment.
It is important to note that discrimination law is not the only course to follow. In cases where the victim is underage, or the harassment becomes physical, criminal charges may provide a stronger response. The charge can range from sexual assault or battery to statutory or coercive rape. This may provide quicker protection and can be the course followed when the company is reluctant to act. Police involvement is likely to bring a response.
In another case, two male grocery store workers complained after a female store manager had talked with them about her sexual experiences, flashed her breasts at them, rubbed up against them, told other workers that one of them was her “boyfriend,” and, after one of them quit, argued with the remaining young worker. After complaining to her superior, the second young worker was fired for “unprofessional conduct.” In this case, in addition to harassment, retaliation appears to have taken place. The EEOC filed suit. Other cases involved a bagel shop and a golf course.
In cases of this sort, the monetary damage awards can be misleading or seem confusing to older people. After all, even in a legitimate claim, one might ask how much is really “lost” by a young person possibly working for a brief stint at a low-paying gig, with other opportunities and career options ahead of them. Viewed in this limited light, the loss of a presumably temporary, burger-flipping job may seem “no big deal” or not worthy of significant damages. Some may even suspect that complaints are a “scam” to win big awards.
Yet, it is important to note that most people (of any age) involved in disputes over sexual harassment are not thinking of damage awards, but of their safety, continuation in their employment, and hopefully preventing a predatory employer or supervisor from hurting others. For, as I have discussed in previous columns, sexual harassment is usually not an isolated offense; where there is smoke from one incident, there may have been other fires before, and it often requires having someone file a complaint to stop a harasser from going on to discriminate against others. The courts have held that the employer is in the best position to act to prevent harassment and damages have provided an incentive for most employers to move to avoid incidents.
Further, people who enter the legal system in bad faith to make a quick buck are rarely successful and few try. The risks and demands of pursuing a claim for workers of any age are real and, depending on the facts, there isn’t a guarantee about the result. Even more so for young victims — who have little experience with any kind of legal proceeding — there may be a desire to just avoid the hassle of pursuing a claim, finish their work and move on. That is not to say that the charges are likely to be violations. Most charges, in fact, are not successful. It is important to note that not all apparently unfair situations constitute illegal acts and that, at least initially, the burden of proof lies with the complainant.
The workplace is an adult environment. One can learn a great deal about respect, hard work, the value of money and honesty. At the same time one can see quickly that while most respect the rights of others, one who doesn’t can cause great pain and difficulty. It isn’t easy standing up against someone with more power and often more knowledge and experience, especially when they control your paycheck and, in some types of student employment, can affect your grades.
Young people who show the courage that it takes to assert their rights may make that workplace, and indeed other workplaces, safer and fairer for all who work there. That kind of courage will serve that person, their employers and our nation throughout their life.
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