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BLOG / 01.03.19 /Jack Malley

Subway Franchisee Called to Task by EEOC for Sexual Harassment of Job Applicants

On November 29, 2018, the EEOC and Draper Development, LLC, a Subway franchisee operating 24 Subway restaurants in the Albany area, entered into a Consent Decree arising from texts sent by a Schenectady store manager seeking sexual favors from two 17-year-old job applicants.

Among others, the store manager sent a text message to one applicant stating: “Bang my brains out the job is yours” and a text to the other applicant stating: “Do you want to f–ck?” Draper fired the store manager after an investigation of the charges.

In 2015, the EEOC commenced an action in the U.S. District Court for the Northern District of New York alleging unlawful employment practices against Draper. The Consent Decree required Draper to: (1) pay the two job applicants a total of $80,000 in back pay; (2) post a notice to its employees of the lawsuit and settlement; (3) maintain and distribute written policies and procedures prohibiting discrimination including sexual harassment and enabling employees to file discrimination complaints; (4) provide training on federal laws prohibiting discrimination including sexual harassment to all current and future employees; (5) permit the EEOC to monitor Draper’s compliance with the Consent Decree; and (6) provide the EEOC with periodic reports on internal complaints of discrimination.

Consistent with the model sexual harassment prevention policy that the New York Department of Labor issued last year, the policy required by the EEOC provides a higher standard of conduct for supervisors than for other employees who have witnessed sexual harassment. Employee witnesses who are not supervisors are instructed to “please immediately” report the harassment. In contrast, supervisors are “requir[ed]” to promptly report complaints and are subject to “immediate termination” for their failure to do so.