EEOC lawsuit shows how to do everything wrong in claim of same sex harassment

November 4, 2023

The Equal Employment Opportunity Commission (EEOC) has sued a Pennsylvania grocery chain, Weis Markets, after it terminated an employee accused of sexual harassment when she refused the company’s directive to participate in its Employee Assistance Program (EAP).

According to the EEOC, a female supervisor at one of its stores subjected a female employee to unwelcome and offensive sexual harassment. The supervisor allegedly made “frequent sexual comments” and “often winked at the employee.” The supervisor also allegedly “made statements indicating the propensity to commit violent acts.” One time, the supervisor allegedly kissed the employee’s face without consent.

If these facts are true – the supervisor should have been fired.

Instead, the company told the supervisor that coworkers complained about her and then directed her to participate in the company’s EAP. When she refused, the company placed her on leave and then fired her due to her refusal to participate in the EAP.

In its lawsuit, the EEOC alleged that the mandatory EAP referral “would have required [the supervisor] to undergo a medical examination and disability-related inquiries. The referral would also require her to release medical information to the company, and the company official confirmed to [the supervisor] that the referral was to determine whether she would be placed on disability leave.”

The EEOC found two major problems with the company’s response to the allegations of harassment.

First, the EEOC determined that the company failed to take reasonable corrective action against the supervisor after the employee reported the sexual harassment and the supervisor admitted to some of the alleged conduct.

Second, the EEOC asserts that the mandatory referral to the EAP, under these facts, violated the Americans with Disabilities Act which prohibits mandating an employee to undergo a medical examination or answer questions that will likely reveal whether the employee has a disability. The ADA has an exception to this rule if the employer can show that the disability-related inquiry is job-related and consistent with business necessity.

Employers also cannot retaliate against an employee who refuses to participate in an illegal inquiry nor can an employer interfere with an employee’s right to be free from illegal medical examinations and disability-related inquiries.

The employer here did everything wrong, and unfortunately these mistakes are too common.

Instead of protecting the victims, the employer sought to determine if there is a medical reason for the harassment. That’s not the right approach. The right answer is accountability for the misconduct by the supervisor. There is no excuse or justification for illegal harassment.

Employers too often use the EAP as a crutch. In my 30 years practicing law I can’t think of a time when I did a mandatory EAP referral. The employer can, and should, offer EAP to employees. The EAP can be a valuable resource for employees in many situations, and it is an underutilized resource. However, mandating EAP as a condition of employment should be carefully weighed as to the reason and legality.

If an employer believes that an employee is a direct threat to the workplace, the employer can mandate that an employee undergo a medical examination to determine if the employee is a direct threat to self or others. That’s not what happened here. The supervisor engaged in misconduct, and discipline, not an EAP referral, should have been the response.

Too often employers don’t terminate the person engaging in harassment for fear of litigation. Here – the employer is being sued anyway because it avoided corrective action and focused on helping the perpetrator not the victims.

Upon being made aware of allegations of harassment, employers must conduct a fair and objective investigation. The investigation part is where too many employers fail. Everyone deserves fairness in the process. The investigation must render conclusions as to the facts.

If some or all of the allegations are determined by the investigator to be true, employers must take prompt and firm action to end the harassment. This is what the law expects, and how employers can support a harassment-free workplace and avoid litigation.

This case is also a reminder that same sex harassment is still harassment.