The Tub Shop, Inc.
DECISION OF THE COMMISSION
Following a hearing on the merits and a
review of the evidence, the Commission finds and rules as follows:
I. FINDINGS OF FACT
1. Rachel Lyons timely filed a complaint of sex discrimination (sexual harassment) with the New Hampshire Commission for Human Rights and the United States Equal Employment Opportunity Commission against The Tub Shop, Inc./Robert Drinkhall, President.
2. Complainant alleges a violation of RSA 354-A:8 in that Respondent's use of sexually explicit language created a hostile and offensive working environment. Hum 402.02
3. Respondent is a chain of hot tub shops which rents private rooms containing hot tubs to customers. The corporation has shops in three New Hampshire locations and one in Maine.
4. Complainant was employed as a receptionist/general helper at the company's Portsmouth location from Januaru 8, 1988 through April 21, 1988, working an average of 25 hours per week.
5. On March 28, 1988, Complainant filed a charge alleging that Robert Drinkhall made the following statements:
6. Respondent acknowledges making the statement referenced in paragraph 5(a) at a meeting with six employees, three male and three females, present. Letter from Respondent dated April 9, 1988.
7. Respondent admits making the statement referenced in paragraph 5(b) and explains it by saying he was joking.
8. Respondent further explains that the operation of a hot tub facility frequently involves issues that are sexual in nature and that training of new employees covers topics which are related to sexuality such as properly treating the tubs with chemicals to prevent the transmission of venereal disease. Respondent also emphasizes that he believes customers engage in sexual activity in the privacy of the tub rooms.
9. On April 12, 1988, complainant gave two weeks notice of her intention to terminate her employment.
10. On April 21, 1988, complainant was fired by a newly hired assistant manager.
11. Respondent's justification for firing complainant after she had filed the complaint and given notice, is poor performance.
12. To support its justification for firing, Respondent submitted two "Closing Evaluation" forms and an unsigned paper dated April 19 with two negative comments about complainant's use of vulgar language.
13. The "Closing Evaluation" forms rate the employee using a variety of criteria, such as the cleanliness of various items and areas in the shop. Points are deducted depending upon the severity of the problem noted.
14. Complainant's evaluations are generally positive until April 5th including such comments as "nice close" (seven times in one form or another) and "job excellently completed, awesome."
15. On April 20th, the reviewer subtracted 102 points based on leaving various items uncleaned. According to the form, a score of 100 points results in a one week delay of salary review or one week loss of privileges. Complainant was fired the next day.
II. RULINGS OF LAW
George McAvoy, Commissioner
Gail G. Gunn, Commissioner
Celine Tamposi, Commissioner
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