Employers that have a workforce of high school or adolescent employees often face unique problems. Most of these revolve around the fact that high school students are not exactly socialized to a business-type environment, although workplace laws and regulations apply equally to them. High school students engaging in high school behavior in a workplace is a prescription for disaster, as a Chicago-area ice cream store discovered recently.
The plaintiff, a then-16-year-old ice cream scooper, alleged she was sexually harassed to the point of sexual intercourse by her 25-year-old shift supervisor. Because the plaintiff was only 16, the supervisor was convicted of statutory rape, although the sex was consensual. Citing her age and concerns for her psychological well being, the plaintiff refused to be interviewed directly by the EEOC after she filed her charge, although she agreed to answer questions through her attorney. The Commission instead dismissed the case and issued a right-to-sue letter.
The district court granted summary judgment for the ice cream store, on the theory that plaintiff failed to exhaust her administrative remedies because: she refused to "cooperate" in the EEOC investigation, her relationship with her supervisor had been voluntary and the conduct alleged occurred, for the most part, outside the workplace.
The Seventh Circuit reversed. The court first found that exhaustion of administrative remedies under Title VII did not require a charging party to cooperate with the EEOC in its investigation. The court noted that plaintiff "exhausted" her remedies by filing a charge of discrimination and waiting until the Commission issued its right-to-sue letter. In other words, there is no requirement that a charging party do anything other than these bare, minimal requirements to complete the administrative prerequisites to sue.
In reviewing the sexual harassment claim, Judge Posner noted that although Title VII requires sexually harassing conduct to be "unwelcome", where the plaintiff is below the state statutory age of consent it is impossible as a matter of law for her to acquiesce to sexually harassing conduct. Posner also said that the consensual nature of the conduct could be used to reduce defendant's damages, but that as far as liability went, the employer could not offer consent or participation in the conduct as a defense for an underage plaintiff.
Posner next found that even though Title VII relates to workplace conduct, sexual acts "need not be committed in the workplace, to have consequences there." This is not news to those of us who practice in this area, but it bears reinforcing again. Where a supervisor engages in workplace conduct that culminates in sexual activity outside the workplace, then a sexual harassment charge can fairly encompass all of the activities regardless of location.
Posner closes with direct and cautionary language: "An employer of teenagers 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." Under the circumstances in this case, Posner and the Seventh Circuit had little difficulty finding that the allegations were not proper for summary disposition, but instead needed to be decided by a jury.