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Retailer must protect employee sexually harassed repeatedly by customer

  • Author: Lynne Curry
    | Alaska Workplace
  • Updated: October 21, 2019
  • Published October 21, 2019

Question: I work for a major retailer. One of our customers comes in several times a week and thinks he’s being charming when he puts his arm around me as I’m stocking shelves or taking care of other customers. If I see him coming, I hide out in the back but this customer wanders around the store for as much as an hour. Last week when my manager found me hiding, he got upset and told me, “We need you on the floor.”

I tried explaining the situation to my manager, but he said me the guy was lonely and harmless and I just needed to make a pleasant comment and push the guy’s hand away. I told him I’d tried this several times a week for more than a month. He said I needed to get out of customer service if I couldn’t handle this type of situation. My mom told me to call you.

Answer: Your supervisor might need to get out of management if he can’t handle this type of situation. A female employee who re-shelved items won a $250,000 verdict when a jury decided that a retailer didn’t sufficiently protect her from a customer who repeatedly harassed her.

The male customer in that case, EEOC v. Costco Warehouse Corporation, hounded an employee for more than a year. After the employee reported the first incident, the manager and a security officer escorted the customer off the floor when he returned a second time. They also told him not to go near the employee, but the customer came back to the store more than 20 times. Although Costco defended itself, saying that the employee was unreasonably sensitive and the customer’s interactions with the employee were mild, they lost.

Question: I’m in my fifth week of maternity leave and although I love my baby, I’m desperate to return to work. Not only am I climbing the walls, but only the first two weeks of leave were paid and our family needs my paycheck.

I thought returning to work would be simple and that I only needed to find day care and then call my supervisor and say I was ready to return. When I called him, my supervisor told me that there’s a rule in the employee handbook that I need to provide him a medical release that says I’m “one hundred percent recovered.”

I can’t get one. My doctor says he can’t sign a release saying I’m “one hundred percent recovered” but can say I’m recovered enough to handle my desk job. My doctor says my employer probably doesn’t want me to return because it would need to allow me to break time to pump breast milk.

I told my supervisor what my doctor said and he said he couldn’t authorize a policy violation, but would run my request to return up the management chain. If they say “no,” does it mean I need to get a new doctor or am I out of a job?

Answer: It means your company has a rule it needs to change. According to the federal Equal Employment Opportunity Commission, a “100-percent recovered" policy that says that an employee cannot return to work until the employee is free from any medical restrictions violates the American with Disabilities Act. The ADA requires that employers reasonably accommodate to employees that are pregnant or have related conditions; a one hundred percent recovered policy has no provision for reasonable accommodation.

If your employer believes it doesn’t need to change its policy, it can look to the multiple class actions the EEOC has filed against organizations with inflexible leave policies. These lawsuits warn against one-hundred percent policies for women returning from maternity leave and employees returning after other medical conditions. As just one example of the need for realistic policies, only 10% of those who suffer a stroke recover “almost” completely. Given these cases, employers should engage in an interactive process with an employee willing to return to work to see what they can do to bring the employee back on board with reasonable accommodation.