Understanding Sexual Harassment In The Restaurant Workplace

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The issue of sexual harassment is certainly not a new one. Federal law prohibiting sexual harassment started at least as far back as 1964 with the passage of Title VII of the Civil Rights Act. Although Title VII was amended in 1991 to provide it more teeth, sexual harassment continued as it always had. But, as you’ve undoubtedly seen recently, this widespread problem has stepped out of the shadows and onto the front page of every newspaper.

Amanda Fugazy
Amanda Fugazy, partner at Ellenoff, Grossman & Schole LLP

Frankly, sexual harassment has always been an issue in the restaurant industry. The dominant headlines are not a surprise to most of you.  But what will they actually mean within the workplace?  Hopefully, it will mean that far fewer people will have to endure sexual harassment.  However, the scary part for the restaurant owner is that this watershed moment will surely result in increased lawsuits. 

In the restaurant industry, there are really two issues. First, there will be an increase in frivolous lawsuits.  As unfortunate as it is, there isn’t much you can do about profiteers who prefer to blame you rather than take account for their own poor performance. That’s just part of life.  Second, conversely, much of this behavior has been accepted for so long in the restaurant industry that it’s difficult to see clearly to protecting yourself and your business from liability.  Regardless of the difficulty, now is the time to take the steps necessary to protect your business from sexual harassment lawsuits.

If the conduct is unwelcome, sexual in nature, and rises to the level of being severe or pervasive, the employee has been harassed and the employer has liability. Employers have liability to employees for harassment perpetrated by mangers, co-workers, vendors and customers. You may wonder—how could I possibly have liability for a drunk customer harassing my bartender?  You do. Under the law, the employer is responsible for the people that his or her employees come into contact with while on the job. That includes the meat purveyor, the water delivery guy, the plumber, and of course, the patron.

Nonetheless, all is not lost. As stated above, to have liability, the conduct must rise to the level of being sever or pervasive—it is the employer’s responsibility to stop the unwelcome conduct before it reaches an actionable level.  A sexual comment, innuendo, joke or even a one-time unwanted touching typically aren’t actionable.  So, to protect your business you must take action, and train your mangers to take action, prior to behavior escalating.  Axiomatic in this notion is that to act, you must know about the conduct.  So, how can you find out about harassment and stop it prior to it becoming an issue for your restaurant?

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For an employer to deal with a sexual harassment issue appropriately and avoid legal responsibility, there are several steps the employer must take:

  • First, employers must have a policy that clearly prohibits sexual harassment, and contains clear directions on how an employee is to report sexual harassment. A policy of this nature is usually contained in an employee handbook, and employees should be required to sign off on receiving and understanding the policy.  Further, a policy can only be effective if the employee can understand it, so employers need to have it translated into the languages its employees can read. 
  • Second, employers need to train managers and employees on avoiding harassment and following their policy. Because the mangers are often the ones who will take the actual complaints, it is imperative that managers have a clear understanding of their role and responsibilities, and clear direction on how they are to respond to various situations. 
  • Third, employers must respect the policy in practice, not just on paper. Complaints and reports of sexual harassment must be taken seriously, and can never be ignored. It is the employer’s obligation to ascertain the facts and to take action calculated to stop the offending conduct. This could mean escorting a patron out of the establishment, refusing to continue working with a certain vendor, or firing a Chef— whatever the remedial action, the priority must be to protect the employees, remedy the situation and avoid liability.  Sometimes, this can be as simple as a warning to the offending individual.  The point is that the offending conduct must stop. 
  • Lastly, individuals who come forward with concerns regarding harassment must be protected and must not be retaliated against.  The system of avoiding liability will only prove successful if individuals feel comfortable coming forward with their concerns.  This will not happen if the employees fear for their jobs.

Some of you may be thinking that you have little to worry about because you have insurance for sexual harassment claims.  However, while employment practice liability insurance is an absolute necessary component to your asset protection plan, it’s far from a panacea when it comes to harassment claims.  This insurance is expensive.  Deductibles become very high after an initial claim, usually rising to $50,000, and that isn’t even considering the premium.  Plus, once the insurance is triggered, you are already being sued.  I assure you, defending an action does nothing for your workplace morale, retention rate, publicity or time management.

Restaurateurs and operators need to seek a lawyer who specializes in labor and employment law because there are intricacies to sexual harassment policies that are quite important. Further, employers need a lawyer who can provide education on the requirements in plain English, who can explain the consequences of failing to properly follow policy, and who can do it all in as entertaining a way as possible.

Sexual harassment has always been a source of liability for restaurants and all employers would be well advised to proceed cautiously and proactively, and respond to any incidents of sexual harassment swiftly and seriously. This issue is no longer in the dark, so ignore it at your own peril. 

This spotlight should be used as an opportunity to adjust your culture, if needed, to attract and retain the great employees that you need to grow your business. We are here to help and welcome your questions.

Amanda Fugazy
Amanda Fugazy is a partner at Ellenoff, Grossman & Schole in New York City. She is the head of the firm’s labor and employment group, and has a focus on the restaurant and hospitality industry. Fugazy offers a variety of services to the industry, including working with her clients to ensure that they are in compliance with state and federal laws and regulations. She can be reached by phone at 212-370-1300, or by email at afugazy@egsllp.com