The friendly staff, the laid back atmosphere, the offer of alcohol: The same qualities that make a restaurant enjoyable are the ones that leave it vulnerable to an expensive—and often avoidable—reality: the threat of a sexual harassment lawsuit.
The restaurant industry is the country’s single largest source of sexual harassment claims, according to the U.S. Equal Employment Opportunity Commission (EEOC). For restaurant owners, getting sued by an employee for sexual harassment is costly—not just financially, but in terms of reputation, staff morale and the time and energy spent defending the case.
While there are few things more frustrating than watching your business’s hard-earned profits disappear into legal fees and settlements, the good news is that there are things you can do to protect your restaurant from being sued in the first place. Educate yourself and your staff, and you can head off a sexual harassment claim before it damages your restaurant.
1. Recognize unlawful harassment.
Most people know that unlawful sexual harassment includes unwelcome sexual advances, requests for sexual favors and verbal or physical behavior that is sexual in nature. What many don’t know is that it also includes harassing comments about a person’s gender, whether or not the comments are sexual in nature. The harassment can come in seemingly benign forms, like jokes, pictures, emails or text messages. While the alleged harasser is often a supervisor, an employee can also allege harassment by a coworker, or even by a nonemployee, like a guest or customer. Also bear in mind that the victim and harasser do not need to be of the opposite sex.
2. Develop a policy.
If you don’t already have one, now is the time to introduce a clear and comprehensive policy prohibiting sexual harassment in your restaurant. The policy should express strong disapproval of sexual harassment, describe what conduct is prohibited, inform employees of their right to complain and explain the sanctions for violation. The policy should also describe the procedure for resolving harassment complaints, and it should ensure that complaining employees and witnesses are protected against retaliation. All employees should be required to review and sign the policy. You may also want to post a copy of the policy in a place where employees can see it.
3. Train your employees.
Developing an anti-harassment policy is only a first step. When a St. Louis burger restaurant was sued for sexual harassment in 2004 based on claims that a manager subjected teenage employees to crude remarks and sexual advances, the EEOC made much of the fact that the employees had received no training on how to lodge a sexual harassment complaint. (The suit was settled for $400,000). It is important to communicate your anti-harassment policy to your employees and train them regarding federal sexual harassment law as well as the law in your state. If you have non-English-speaking employees, consider offering training and a copy of your anti-harassment policy in their preferred language.
4. Investigate promptly.
Many of the sexual harassment cases against restaurants involve employee complaints that were never addressed. When you receive a complaint or learn about problematic behavior in your restaurant, take prompt and thorough action to stop the harassment and prevent it from recurring. Investigate what happened (or engage an attorney to do so), and determine whether disciplinary action should be taken against the offending employee. If the victim has lost pay, benefits, or employment opportunities, take steps to make that employee whole. Always follow up to make sure the harassment has not continued and that the victim has not suffered retaliation for complaining.
5. Be responsive.
Ignoring complaints of harassment will not make them go away. One Arizona restaurant learned this the hard way several years ago when the EEOC filed a claim against it on behalf of six employees who alleged they were repeatedly sexually harassed by colleagues. According to the employees’ complaint, the restaurant’s managers witnessed multiple episodes of sexually abusive behavior, including perpetrators dragging their victims kicking and screaming into the refrigerator. The employees claimed they complained to virtually every manager in the restaurant, but nothing was done to stop the harassment. Ultimately, the restaurant paid $345,000 to settle the employees’ claim. The lesson? Take complaints seriously—before they turn into lawsuits.
Shira Forman is an attorney in the labor & employment group of Sheppard Mullin Richter & Hampton LLP. She can be reached at [email protected].