Retail employers, whether a large nationwide chain or a small mom-and-pop shop, often face a wide variety of discrimination and harassment claims because they frequently deal with a workforce that is young, is diverse and may be temporary or seasonal. Recent cases show that retail employers will pay a hefty price for engaging in discrimination and harassment, and reinforce the need to provide comprehensive training to all employees and supervisors.
For example, in Equal Employment Opportunity Commission v. Finish Line, Civil Action No. 3:11-cv-00920 (M.D. Tenn. 2013), a jury awarded $30,000 in compensatory damages to three teenage employees who were sexually harassed by a 38-year-old general manager at a Finish Line store in Tennessee. Further, the manager retaliated against one of the female employees by reducing her hours because she resisted the harassment. In commenting on this case, the Equal Employment Opportunity Commission (EEOC) recognized that any woman dealing with sexual harassment in the workplace is unfortunate, especially teenagers. "Equally reprehensible is the fact that the harassment was at the hands of their much older male supervisor."
Also, in Equal Employment Opportunity Commission v. America's Thrift Stores, Inc., Case No. 2:11-cv-03466-AKK (N.D. Ala. 2013), America's Thrift Stores of Alabama agreed to settle a disability discrimination lawsuit for $50,000 brought by the Equal Employment Opportunity Commission (EEOC). The EEOC alleged that the company failed to provide a reasonable accommodation to an employee with lifting and reaching restrictions due to a degenerative joint disease and then terminated her - calling her a liability - despite the fact that she maintained a good work record and was a solid performer. The EEOC contended that the employee was able to perform the essential functions of her position with an accommodation and that the company's blanket policy of refusing to allow employees with nonwork-related injuries to return to work with restrictions was a clear violation of the Americans with Disabilities Act (ADA). As part of the settlement, America's Thrift Stores must also train all employees, managers and supervisors regarding employee rights and employer obligations under the ADA.
In another case, Hotchkiss v. CSK Auto Inc. d/b/a O'Reilly Auto Parts, +2013 U.S. Dist. LEXIS 9199 (E.D. Wash. 2013), a district court held that a homosexual retail specialist with O'Reilly Auto Parts in Seattle could proceed to trial on his hostile work environment claim under Washington state law. The employee alleged that a subordinate employee called him "queer" and "faggot" and that an assistant manager said "all faggots should be shot," causing the employee to walk off the job because he feared for his safety. Company management allegedly did not take any substantive measures to address and end the harassment after he complained.
The court held that the comments were so severe and pervasive that they altered the terms and conditions of employment. The court further held that the employer was vicariously liable for the subordinate's harassing conduct because the corrective actions taken by management (issuing a verbal warring, reading a copy of the sexual harassment policy and making a note in the subordinate's personnel file) were not reasonably calculated to end the harassment and dissuade others from further harassment.
Advice for Retailers
Taken together, these cases show that retail employers must implement and enforce policies and practices that prohibit and prevent discrimination, harassment and retaliation. Retail employers should provide regular training to all employees, supervisors and managers who work in their stores to ensure that they understand how to identify unlawful discrimination and report claims to the employer or HR.
Retail employers must be thoroughly versed in the laws that are applicable to the states in which they operate stores and outlets. For example, Title VII does not specifically include sexual orientation as a protected class, but some state antidiscrimination laws do.
All managers and supervisors should know how to respond to requests for accommodations based on disability or religion and how to engage in the interactive process to see if the employee can be accommodated without causing the employer undue hardship.
Lastly, retail employers must show that they are committed to taking discrimination and harassment complaints seriously by instituting effective remedial measures to put an end to the discriminatory or harassing conduct.
Additional Resources
Employee Management > EEO - Discrimination
Employee Management > EEO - Harassment
Employee Management > EEO - Retaliation
Employee Management > Disabilities (ADA)
Supervisor Briefing: Discrimination
Bullying and Harassment - Supervisor Briefing
Sexual Harassment - Supervisor Briefing
Discrimination Policy
EEO Policy
Sexual Harassment Policy
