Texas courts have considered sexual harassment at both ends of the age spectrum lately. One case involved a teenager as a victim and the other involved a 62-year old harasser who claimed age discrimination when he was fired. Both cases have lessons to teach employers about sexual harassment, still one of the most common employment claims that companies face.

The case involving the teenager was tried in Houston last year. The EEOC filed the case on behalf of a 19-year-old who was hit upon by the owner of the dry cleaners in which she worked. The evidence showed that the owner inappropriately touched his young female employee, made many offensive comments, and held her against his will in her car while he graphically related his sexual desires and threatened her with sex against her will. The jury found that the owner had harassed the employee and awarded her $105,000.

A couple of things need to be learned from this case:

• Young workers are particularly vulnerable to sexual harassment and discrimination, mainly because they are inexperienced and may not understand appropriate boundaries at work. Therefore, the employer must take extra care in the training and orientation whenever teen workers are hired. I described a low-cost way to do this in another post in this blog specifically about hiring teen workers: “An easy way to fulfill your orientation and training responsibilities to teen workers is to video one session when you are explaining the procedures to a new teen worker. Then you can show that DVD to each new employee and you don’t have to repeat yourself numerous times. It can also protect you if you are sued because it can establish the fact that you made a reasonable effort to train and protect your teen employees.”
• Sexual harassment by the owner or another key employee is going to cost your company. A coworker falsely imprisoning an employee in a car and threatening her with rape would be bad enough, but there is no way that the company is going to be able to rely on a written policy requiring reporting sexual harassment or any other common defense when the owner is the harasser. I’m surprised the case even went to trial. It was a no win case for the defense lawyer. Avoid a similar result in your own company by following one old and crude, but simple, rule: Don’t even consider dipping your pen in the company inkwell.
  

The second case, decided by the Texas Supreme Court in December 2008, was actually an age discrimination case filed by a 62-year-old AutoZone employee named Salvador Reyes. Reyes claimed that his firing following a sexual harassment investigation in which he admitted that he hugged, tried to kiss, held hands with and asked out a female coworker several times was actually a firing based on his age.

He argued that a store manager not involved in the firing decision had said that AutoZone intended to get rid of “the old people”. He also presented some evidence that some younger employees who had violated the AutoZone sexual harassment policy were disciplined less severely. He convinced the jury and the court of appeals that he was the victim of ageism.

The Texas Supreme Court was unconvinced. It reversed the case and entered a judgment exonerating the employer. It said remarks made by a supervisor who did not take part in the firing decision did not indicate age bias on the company’s part.

Furthermore, the court ruled that actions of other employees who had not been fired for sexual harassment were not of comparable seriousness to Reyes’ admitted behavior. AutoZone also had excellent records showing that it had terminated 23 people for sexual harassment during a relevant 3-year period and that 73% of them were under the age of 40 (the age at which age discrimination claims are viable).

So what can you as an employer learn from the AutoZone case?

• AutoZone had a written sexual harassment policy, which was the first thing the Supreme Court cited and quoted in its opinion. Make sure you have an extensive written sexual harassment policy that has been provided to every employee (and a signed acknowledgment returned by every employee). A couple of hours of annual sexual harassment training for every employee will provide even more protection.
• AutoZone conducted a written investigation of the sexual harassment complaint, giving both the victim, the accused and coworkers a chance to provide written statements. It was Reyes’ own statement admitting the harassing conduct that caused his termination. In your own business, you must follow your written policies and institute an immediate investigation anytime sexual (or other illegal) harassment is alleged.
• Keep records and good statistics to be able to show patterns and practices of disciplinary actions and terminations. Strive to treat employees with similar disciplinary problems in the same way every time.
• The written investigation was reviewed by a human resources manager not involved with Reyes’ store or even region. The HR person recommended his termination based on his own statements. She passed her recommendation along to the regional manager over the store in which Reyes worked. He made the final firing decision. This protected AutoZone because the people involved with Reyes (and making stray ageism remarks) were not the decision makers. You can emulate this process even if your company is not as large and bureaucratic as Auto Zone. Just make sure that any firing is preceded by a deliberative process (maybe even by committee of well-trained upper management) and is supported by well-documented reasons.
• Stray remarks, such as the company intends to fire all “the old people”, as well as sexist remarks, racist remarks, ethnic jokes, and other offensive statements directed towards a person’s protected class (gender, race, religion, etc.) continue to be problematic and often lead to lawsuits. Training of all supervisors, even the lowliest assistant manager, is the only effective solution of which I am aware. You have to express a zero tolerance policy towards this kind of bias in your company. I don’t care if you hate being told that you have to be “politically correct”. Any politically incorrect statements made by you or any of your management staff can create lengthy and expensive litigation. Sure, you may win at the Texas Supreme Court level; but do you want to spend the hundreds of thousands of dollars that AutoZone had to spend to secure this victory?