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Sex in the Kitchen

by Carolyn D. Richmond, Esq.

As a restaurant owner and operator, sexual harassment should be on your mind—not how to do it, but how to prevent it. Over 13,000 charges of sexual harassment discrimination were filed in 2004 with the U.S. Equal Employment Opportunity Commission and state and local fair employment practices agencies. Hospitality employers represent a significant number of those charges. Unfortunately, it is restaurant owners who are too often unprepared to defend themselves properly.

All too often business owners find themselves on the very costly end of defending sexual harassment lawsuits because they fell victim to their own unpreparedness. Owners need to think preventatively and act defensively. How vulnerable are you to a sexual harassment claim? Do you have defenses already built into your operations? How can you prepare your business today to defend a lawsuit tomorrow?

Whenever I conduct sexual harassment training for a restaurant, one of the first things I remind owners and managers of is that there is individual liability under certain New York sexual harassment laws. What does that mean? It means that if a court ultimately finds that sexual harassment occurred, not only could the corporate entity be found liable for damages, but the individual owner, manager or chef who committed the harassment, failed to respond properly to a complaint, or ignored the harassment may be liable too. These are serious consequences if you own a car, property, a boat—it may all be up for grabs. Typically, it is at this point in a training session that the audience wakes up and pays rapt attention.

How vulnerable is your establishment? Look around. Do you have supervisory employees engaging in sexual relationships with non-supervisory employees? If the answer is yes, you may be on the precipice of a legal landmine. The “consensual relationship” defense does not always work as the relationship typically sours. The non-supervisory employee may argue that he/she was “forced” into the “relationship” in order to keep her job. She may also argue that when the relationship ended she was retaliated against with (a) lousy shifts; (b) bad table assignments; (c) loss of a promotion; (d) fill in the blank.

Consensual sexual relationships are not the only problems. Do you have a particular chef or manager who uses vulgarity as verbs in every sentence? Is there one employee who always seems to rub up against a female server at the pass, but everyone just laughs? Are your cocktail servers being constantly poked and prodded by guests? Does management ever say anything to the offending guests? What about the changing rooms? Are they truly private, any peeping Toms? (And yes, sexual harassment can be male to male; female to female; female to male).

Once you have assessed the establishment’s vulnerability, it is imperative to determine whether you have any defenses in place to avoid liability if an issue of harassment arises. Providing all of your employees with knowledge is an essential preventative and defensive measure. All employees—including supervisory and non-supervisory staff—should be provided with a comprehensive anti-harassment policy. Such a policy should include at least the following: the definition of unlawful and sexual harassment; a means for employees to report complaints with multiple management level or above persons to receive such complaints; an outline of the establishment’s investigative and disciplinary procedure; and, a no-retaliation clause for those who make a complaint and/or participate in an investigation. The policy should be provided to all employees at the time of hire and on a regular basis thereafter. The policy should include an acknowledgement page demonstrating that the employee received and read the policy. The establishment should also appoint and train at least two people to conduct investigations. The policy should be included in the employee and/or manager handbook, and regularly discussed at staff meetings.

Conducting anti-harassment or “positive employment practices” training for management is also a very affective preventative measure and defense. A lot of supervisors are simply unaware of what constitutes harassment or discrimination in the workplace. A proper training program will not only cover liability and definitions, but will also explain that supervisors cannot simply “look away” if they know a problem exists. Liability for sexual harassment may attach if a supervisor or manager “knew or should have known” of the harassment and failed to address the matter. Non-supervisory anti-harassment training is also strongly advised, as it lets all employees know the lay of the land and what you expect of them as employees. Finally, an establishment should post the anti-harassment policy in the workplace. Preferably, the policy should be posted in an area where employees tend to congregate—i.e. near the time clock.

Owners cannot ignore the liability that outside contractors, vendors and guests pose if they sexually harass your employees. Employers can be held liable for the harassment of their employees by non-employees. Accordingly, an establishment should strongly consider giving all contractors and vendors who will be working in the restaurant and/or with your employees a copy of your anti-harassment policy. With respect to guests, management must be properly trained to watch for any potential harassment by guests and step in if there is a problem. While guest relations is a serious concern, liability is significant and employees should not be retaliated against for reporting a complaint.

Implementing an appropriate anti-harassment program and making sure that it is followed up on is a short-term cost—and not very costly in comparison to the legal fees and possible adverse finding of a single claim. Recently, a major nation-wide chain in Florida was sued by the EEOC based on allegations that a male area manager subjected two female managers to sexual harassment and forced them to resign. The EEOC filed suit in federal court accusing the chain of not protecting the female employees. Under a settlement reached in March 2005, the restaurant group agreed to pay $206,000.00, and for three years will comply with certain monitoring and reporting requirements, post a notice of the decree in the workplace, and provide annual training to all managers and supervisors. Only a few weeks later, in April, a California jury awarded four female employees of a cinema a total of $6.85 million as a result of sexual harassment. That case involved threats of violence by male employees, violent acts, comments about whether the woman “were still virgins”, and other sexually related questions. These cases make clear that juries will punish employers who do not take these issues seriously and take the proper preventative steps.

Integrating a comprehensive anti-harassment program into your workplace is the right step to take to avoid harassment liability. However, the policies and practices must be consistently followed in order for them to effectively limit or even stem damages. Having a policy in place and conducting occasional training sessions are not enough—management must be able to demonstrate that when confronted with a problem its reporting mechanism is truly open to employees and that complaints are handled appropriately and in good faith. If these steps are followed, your time will be spent serving your customers and not being served with an adverse jury finding.

If you have suggestions for future employment or labor law topics that you would like to see discussed in this column please contact Ms. Richmond at crichmond@seyfarth.com or (212) 218-5284. Carolyn D. Richmond practices labor and employment law with the national law firm of Seyfarth Shaw, LLP. Carolyn D. Richmond practices labor and employment law with the national law firm of Seyfarth Shaw, LLP.





           

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