A defendant in a sexual-harassment case has the burden of proving that it has established and implemented an effective complaint machinery, as it is an affirmative defense. What is an effective complaint mechanism?

The U.S. Court of Appeals, 7th Circuit, in Equal Employment Opportunity Commission v. V&J Foods Inc. (No. 07-1009, Nov. 7, 2007) held that a teenager can sue her former employer for sex harassment even though the company had complaint procedures in place, because the process wasn't suited to teenagers.

The defendant is one of the largest restaurant franchises in the country, as stated on its Web site home page, and employs many teenage workers, many of whom are working for the first time.

In the V&J case, Samekiea Merriweather, a high school student, was hired to work at a restaurant after school and on weekends. She had recently turned 16, and this was her first paying job. The general manager of the restaurant was a 35-year-old bachelor named Tony Wilkins. Wilkins was having sexual relations with several of the female employees at the restaurant and began making suggestive comments to Merriweather. He would also rub against her and try to kiss her.

Merriweather rebuffed his advances, but Wilkins persisted. She stated that she felt as though she were working with "a stalker all around." He told her he wanted "a young girl" because of "their body.... You know, it's not all used up." Later, he told her, "I want to take you to a hotel. You can have anything you want. I'll pay you - what, five, six hundred dollars." When she said she wasn't interested in him and that she had a boyfriend, Merriweather stated, he told her that he "was tired of doing things for me and he wasn't going to do anything else for me because I'm sitting here giving away my body for free when he's trying to pay me."

Eventually, the general manager fired Merriweather, ostensibly because she missed an afternoon of work (she had been scheduled to work that morning, and he altered the schedule without notifying her). Wilkins later rehired her, and the harassment continued.

The plaintiff complained repeatedly to shift supervisors and to the assistant manager of the restaurant, to no avail. She asked the assistant manager for a phone number that she could call to complain about the sexual harassment. He told her he didn't know whether he could give her the number and that he wasn't sure there was such a number. He did eventually give her a number to call, but it was a wrong number, and, when she pointed this out to him, he said, "Well, I don't know then."

Merriweather's mother came to the restaurant and complained to a shift supervisor named McBride about Wilkins' sexual harassment of her daughter. Wilkins was not present at the time. McBride professed ignorance of the matter and reported the mother's intervention to Wilkins as soon as he returned, whereupon he fired Merriweather - this time for good - on the grounds that she had involved her mother in the matter rather than handling it "like a lady."

The employer has the duty to create a reasonable mechanism by which a victim of harassment can complain to the company and get relief, and if she or he fails to use such a mechanism, an employer can avoid or limit liability.

What is reasonable depends on the employment circumstances and, therefore, on the capabilities of the class of employees in question.

An employer is not required to tailor complaint procedures to the competence of each individual employee. But it is part of the respondent's business plan to employ teenagers as part-time workers, often working for the first time.

Knowing that it has many teenage employees, V&J was obligated to suit its procedure to the understanding of the average teenager, the court held. Further, the court found that the complaint policy was confusing and ineffective because it did not prescribe a clear path for harassment complaints.

This decision is important because it connects the understanding of the sexual-harassment policy to its effectiveness, given the vulnerabilities of a class of employees.

Perhaps now is the time for employers to consider how user-friendly their sexual harassment policy is, given the nature of the persons employed. Imagine that your own teenager had a complaint to pursue.

Lindy Korn practices at the Law Office of Lindy Korn Esq. in Buffalo and is president of Diversity Training-Workplace Solutions Inc. She can be reached at lkorn@diversitytraining.com.