Starbucks employee spills the beans on workplace harassment

by KrisAnn Norby-Jahner

On the heels of the Equal Employment Opportunity Commission’s (EEOC) call for public comments on revised workplace harassment enforcement guidance, a Starbucks barista filed a sexual harassment lawsuit against her employer. The lawsuit implicates a variety of employment concerns, including coworkers exchanging personal cell phone numbers, text messages both in and out of the workplace, coworkers contacting each other outside of work hours, social media, young employees, and decentralized workspaces. Supervisors and subordinates often have contact via text messaging and social media outside of work. What limits can employers set? 

The complaint

Taylor Woods began working as a barista for Starbucks, and she and another employee received training from colleague Jordan Brock. Woods alleges that Brock gave her and the other employee his cell phone number and asked them to text him with questions. In return, Woods gave Brock her cell phone number.

Woods alleges that Brock began messaging her via Facebook and Snapchat in the days that followed. She indicates he asked questions regarding training at first, but his inquiries quickly became inappropriate. He asked her for nude photographs, talked about sexual topics, and asked her to “come over.” She did not respond to the messages. Eventually, he sent her a nude photograph of himself. Woods immediately ceased contact, but Brock continued to message and telephone her. In addition, he yelled at her and threatened to have her fired if she did not send nude photos of herself.

Woods promptly reported the alleged harassment to the store manager. Two hours into Woods’ shift the next day, the manager pulled her aside to the cafe’ seating area and asked to see her phone and the messages. Woods claims that Brock began listening to their conversation and eventually “caused a scene” in front of customers and coworkers. The manager moved the meeting to a private office, where Brock allegedly yelled, punched at boxes and a table, and laughed while Woods spoke. In response, the store manager allegedly “caress[ed] his shoulder to calm him down.”

When the store manager did not report the incident to corporate headquarters, Woods followed up with her. Woods was told that “if she went to human resources on her own[,] she would be fired and it would not be a pretty outcome for her.” Woods claims that Brock was not investigated or disciplined, she was required to continue working with him, her work hours were reduced, and her work schedules became erratic and were given to her on short notice.

Based on the incidents, Woods recently filed a federal lawsuit against Starbucks alleging a hostile work environment, sexual harassment, and retaliation for reporting sexual harassment. Starbucks filed an answer denying all allegations. Woods v. Starbucks Corp., E.D. Tex., No 4:17-cv-00417, complaint filed 6/14/17, answer filed 7/10/17.

Workplace considerations

The EEOC is the agency that enforces antiharassment and other employment laws and offers guidance to employers to prevent discrimination in the workplace. On January 10, 2017, the EEOC reinforced its goal of preventing sexual harassment in the workplace by releasing for public input proposed enforcement guidance on unlawful harassment. Chair Jenny R. Yang stated, “Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces.”

The EEOC’s announcement followed a select task force’s June 2016 report analyzing workplace harassment and identifying innovative and creative prevention strategies. The report found that the employers most at risk of harassment include:

• Workplaces with homogenous workforces;
• Workplaces where some workers do not conform to workplace norms;
• Workplaces with cultural and language differences;
• Workplaces with coarse social discourse outside the office;
• Workplaces with many young workers;
• Workplaces with “high-value” employees;
• Workplaces with significant power disparities;
• Workplaces that rely on customer service or client satisfaction;
• Workplaces where the work is monotonous or consists of low-intensity tasks;
• Isolated workspaces;
• Workplaces with a culture that tolerates or encourages alcohol consumption; and
• Decentralized workplaces.

Starbucks certainly has some locations with at-risk factors, including stores that employ many young workers in decentralized workplaces, where there is limited communication between organizational levels. Young workers in their first or second jobs are not always aware of laws and what constitutes appropriate behavior in the workplace. According to the task force, some young harassers lack the maturity to understand or care about the consequences of their behavior, and some young targets of harassment lack the self-confidence to resist or challenge conduct that makes them uncomfortable.

Young workers are further placed at risk when the workplace is decentralized. The task force noted there is additional risk at “enterprises where corporate offices are far removed physically and/or organizationally from front-line employees or first-line supervisors, or representatives of senior management are not present.” The task force gave a warning for workplaces that are too decentralized:

Some managers may feel (or may actually be) unaccountable for their behavior and may act outside the bounds of workplace rules. Others may simply be unaware of how to address workplace harassment issues, or for a variety of reasons may choose not to “call headquarters” for direction.

However, serious issues arise when workplace harassment is not properly reported, investigated, or dealt with in a meaningful manner. Not only did Woods feel that her store manager did not properly respond to her sexual harassment complaint, but she also felt that she was retaliated against when she suffered an adverse action moving forward. The EEOC identified retaliation claims as the most frequently alleged charge during its 2016 fiscal year. Yet employees who experience harassment are hesitant to complain because of fear of retaliation. The EEOC confirmed that fear in a 2003 study that found that 75% of employees who spoke out against workplace mistreatment faced some form of retaliation.In addition to a young workforce and decentralized workspaces, the Starbucks case implicates what the EEOC’s task force called an “additional wrinkle” that social media can cause in the workplace, particularly because its use is so widespread. The Pew Research Center has found that 65% of all adults (90% of adults 18 to 29 and 77% of adults 30 to 49) use social media. The task force cautions that while social media may have positive aspects (e.g., allowing employees to share information about themselves and learning about and understanding each other in an informal way), it “can also foster toxic interactions.” The task force noted that a number of witnesses have discussed social media as a possible means of workplace harassment. Woods’ complaint certainly provides a specific example.

Bottom line

The Starbucks case implicates a variety of employment issues, all of which present valid considerations for employers today. Should employees be discouraged from sharing their personal cell phone numbers or engaging in social media contact with each other? The EEOC has acknowledged the value of employees being encouraged to engage in informal communications both inside and outside the workplace. And the National Labor Relations Board (NLRB) certainly would frown upon any policy aimed at chilling (dissuading) employees’ ability to contact or discuss working conditions with colleagues.

However, it is employers’ responsibility to ensure that the workplace remains free from hostility and harassment, and employers must consider how far that responsibility reaches outside the workplace and into social media. Establish a clear, written policy that prohibits harassment or discrimination in any form on social media. Your antiharassment policies should make clear that mistreatment on social media carries the weight of other workplace interaction. Supervisors and others responsible for enforcing antiharassment policies should be wary of making or accepting social media connections with employees. In addition, procedures for investigating harassment should carefully delineate how to access an employee’s social media content when warranted. Social media antiharassment policies should be communicated to employees and revisited frequently.

Also, employers should heed the EEOC’s recommendations, which focus on preventing workplace harassment by:

1. Adopting and maintaining a comprehensive antiharassment policy (including social media considerations) that is communicated to employees frequently;
2. Offering clear, multifaceted reporting procedures with a range of methods, multiple points of contact, and geographic and organizational diversity, when possible;
3. Ensuring retaliation is watched for and prohibited;
4. Running periodic “tests” of the reporting system to ensure it is working;
5. Initiating prompt, objective, and thorough workplace investigations; and
6. Issuing prompt, proportionate, and consistent discipline.

Being aware of your specific risk factors and being willing to take specific actions to prevent workplace harassment is key to ensuring that the workplace remains free of harassment and potential lawsuits.

KrisAnn Norby-Jahner is an attorney with Vogel Law Firm, practicing in the firm’s Bismark, North Dakota, office. She may be contacted at knorby-jahner@vogellaw.com.