A 2019 California case, EEOC v. JCFB, Inc., held that individuals who have been sexual harassed in the workplace but failed to report the harassment to the EEOC within the reporting period may still be able to file suit against an employer if another person files a similar suit within the proper time frame. Employers should be on notice of this holding and ensure that they have thorough sexual harassment prevention, reporting, and investigation procedures in place, starting with sexual harassment training.
The EEOC filed suit against JCFB following Salvador Martinez’s allegations of sexual harassment. Martinez and Maria Palacios moved to intervene as plaintiffs. JCFB operates Porta Bella Restaurant, where Martinez worked, and Mediterranean Restaurant, where Palacios worked. JCFB opposed only Palacios’ motion, and the court considered whether to allow Palacios to intervene.
Palacios was hired at JCFB’s Mediterranean Restaurant in 2015. She alleged that throughout her employment, Leonardo Sanchez (another employee), subjected her to both verbal and physical sexual harassment.
Palacios recounted incidents of sexual harassment that occurred in 2016. In February, Sanchez stuck his tongue in her ear while she washed dishes. In March, he reached under her shirt to touch her breast. At other points, he offered to pay her for sex, followed her into the walk-in freezer, and told her that she could only be a prep cook if she had sex with him.
Palacios alleged that she complained of the harassment to the restaurant manager, which temporarily stopped the harassment. JCFB contends that it never received any complaints of sexual harassment from Palacios.
Palacios left JCFB in May 2016 and filed a charge of discrimination in February 2018. The EEOC did not file suit against JCFB based on Palacios’s complaint because it was filed too late.
Under federal law, “a person aggrieved” can file their claim on top of someone else’s charge even if the individual’s own claim was not filed on time. This practice, known as “piggybacking,” allows this revival only if the two claims are so similar that filing suit about one of them puts the employer on notice about both.
The court considered Martinez’s claim, which was filed timely. Martinez alleged that while he was employed at Porta Bella in 2016, Sanchez and another employee regularly sexually harassed him physically. When Martinez complained to his supervisor, the supervisor told him to ignore the harassment. Martinez further alleged that in May 2016, that supervisor joined in Sanchez’s sexual harassment. Martinez unsuccessfully attempted to contact JCFB through an attorney, and then contacted the EEOC to file his complaint.
The court was satisfied that Martinez’s claim and Palacios’s claim were similar enough to allow piggybacking and allowed Palacios to join Martinez as plaintiffs. The case had not reached trial as of June 2019.
Beginning in 2020, SB 1343 requires California sexual harassment training be provided by all employers with five or more employees. By providing compliant sexual harassment training to all employees, employers can take proactive measures to prevent the behavior described in EEOC v. JCFB and employees can empowered to report such behavior through established reporting procedures so the employer can investigate and take appropriate action.