$700,000 settlement in sexual harassment case involving graphic claims

The EEOC settled its sexual harassment and retaliation case against Ojos Locos Cantina in New Mexico earlier this month for $700,000, as well as injunctive relief described below.

The EEOC’s complaint

The EEOC alleged that, among other things, female employees at Ojos Locos Cantina were subjected to:

• Receiving an unwelcome photograph of a supervisor’s penis by text;
• Frequent comments by supervisors and co-workers about penises;
• Frequent sexual comments about women’s appearance and women’s body parts;
• Requests for sex;
• Touching and groping of female employees;
• Frequent sexual remarks and sexual innuendo; and
• Being required to submit to photographs of their bodies, including bare midsections and cleavage as a condition of employment.

Ojos Locos Cantina denied the allegations.

Hostile work environment legal framework

To prove a hostile work environment claim, a sexual harassment plaintiff must prove that the underlying acts were severe or pervasive.  A single act of severe harassment, such as a sexual assault, is actionable under Title VII of the Civil Rights Act.

To determine whether harassment violates Title VII, courts consider the following factors:

• the frequency of the discriminatory conduct;
• its severity;
• whether it is physically threatening or humiliating, or a mere offensive utterance; and
• whether it unreasonably interferes with an employee’s work performance.

The employer may automatically be liable if a supervisor harasses an employee that causes an adverse action like termination, lost wages, or a suspension.

If a supervisor creates a hostile work environment for an employee, then the employer will escape liability only if it can prove:

• it reasonably tried to prevent and promptly correct the harassing behavior; and
• the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer

If a non-supervisory employee harasses another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

The EEOC’s settlement

As part of the settlement, aggrieved individuals who allege they were subjected to harassment and/or a hostile work environment may receive a portion of the $700,000 settlement.

In addition, the EEOC obtained significant injunctive relief that will require, for example, Ojos Locos Cantina to end any discriminatory or retaliatory actions against employees; provide training to its workforce, including training on best practices for investigating harassment complaints, and shall revised its manager evaluation process to incorporate how well managers comply with EEO and anti-discrimination policies.