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“Would You Sleep With the Manager to Get this Job?” Asks Subway Manager

A manager of a Subway sandwich restaurant in Albany, New York allegedly had a practice of texting minor job applicants about whether they would sleep with him to get the job.  The Equal Employment Opportunity Commission (“EEOC”), the federal watchdog for anti-employment discrimination laws, sued the Franchisee who owns the restaurant, alleging violations of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991.  The Franchisee settled, agreeing to pay $80,000 to the two applicants who alleged receiving such texts.

The store manager, Nick Kelly, texted the first applicant “Hi how badly do you need a job?”  and later asked “Would you sleep with the manager to get this job?”  Upon receiving a response, the manager texted back “Bang my brains out and the job is yours.”  Kelly texted another applicant and asked if she would have sex with him.  When the applicants complained to the company, it promptly investigated and fired the manager. 

The EEOC still sued and the company moved for summary judgment arguing the applicants suffered no tangible adverse employment actions and thus were not entitled to damages.  The Court disagreed noting it was undisputed both applicants were qualified for the job and were not given a position because they refused to sleep with the manager.  Notably, minimal skill is required to make a sandwich.  Settlement followed shortly thereafter. 

These facts probably leave employers wondering how the manager could be so outrageous and foolish in this day and age (as they should).  But, the case also serves as a reminder the employer can be liable for damages even when it takes swift action and terminates an offending employee or employs other corrective action.  Here, the applicants did not obtain jobs and thus had damages, i.e., wages they would have received had they worked at the sandwich shop.  While these damages did not equate to $80,000 we presume a portion of the settlement accounts for emotional distress damages.  These damages can be quite costly for employers when the facts of what happened are particularly egregious like in this case.  There also is the cost of the legal defense and the time away from work. 

It should go without saying, but do yourself a favor and train your managers not to send text messages to applicants or employees offering job benefits in exchange for sexual favors.  Not everyone shares the same common sense or decency. Failure to train your managers on even the most obvious things can be quite costly as this Subway franchisee unfortunately learned.  Stop it before it starts.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.