Don't Flirt with a Lawsuit: How to Prevent Sexual Harassment in Your Restaurant

Although no industry is immune from workplace sexual harassment claims, restaurants particularly are vulnerable. For one thing, to attract customers, many restaurant chains have adopted entertainment, party like atmospheres -- evidenced by the ever-increasing number of so-called "theme" restaurants where an overall "party" atmosphere is every bit as important, if not more so, than the food served.

Additionally, restaurants recruit employees with outgoing personalities for the frontline positions of host/hostesses, servers and bartenders. Once hired, these employees are encouraged to be fun, friendly and flirtatious -- and there often is a high degree of social interaction between employees both during and after-hours. In this type of informal, jovial atmosphere, it is easy for employees to get mixed signals from each other as the line between acceptable employee banter and social flirtation is blurred

. . . providing managers and staff with the proper sexual harassment training offers restaurant operators the best hope of limiting their liability

Furthermore, many restaurants have managers and/or supervisors very similar in age to the staff. This leads to the problems associated with having young people -- with little or no real-world experience, managing other young people. For example, a 26-year-old shift manager may not fully appreciate the ramifications of "hitting on" a 24-year-old server and then altering her shift schedule when she rebuffs his advances. Because of the unique social relationships and interactions in the restaurant industry between managers and staff, the need for those employees to be trained on the perils of inappropriate conduct cannot be understated. While it is impossible to eliminate the threat of sexual harassment from the restaurant environment completely, establishing an unambiguous harassment policy and providing managers and staff with the proper sexual harassment training offers restaurant operators the best hope of limiting their liability. The failure to do so can prove extremely costly. This includes defending the claim as well as the cost of a settlement or, in a worst-case scenario, an adverse verdict.

According to statistics released by the Equal Employment Opportunity Commission (EEOC), the number of discrimination charges being brought against the restaurant industry shows no signs of abating. As a result, restaurant operators need to address proactively the issue of sexual harassment in the workplace, lest they inevitably will find themselves facing the undesirable task of responding to an EEOC charge of discrimination or a civil lawsuit with little or no defense. To underscore the importance of this issue, one need only consider the consequences of a restaurant operator's failure to train the staff as to how to respond to a harassment complaint. For example, this past June a federal District Court returned a $1.55 million verdict for five former employees of a Florida restaurant. Filed on behalf of the employees by the EEOC, the complaint alleged that the former waitresses and hostesses were subjected to "egregious" acts of verbal and physical sexual conduct on the part of one of the employer's assistant managers. According to the plaintiffs, and apparently as accepted by the jury, the assistant manager would rub the employees' breasts, legs and buttocks in a sexually offensive manner; would force the women to sit on his lap before leaving their shifts; attempt to kiss them; and make graphic, offensive sexual remarks to them. The employees further alleged that despite repeated complaints to management, and one area manager in particular, the corporate defendants failed to take necessary corrective action, allowing the offensive conduct to continue and escalate.

. . . More often than not, workplace sexual harassment liability arises when operators and managers either are unaware of the types of conduct that could constitute sexual harassment or, alternatively, are unaware of the proper way to handle a sexual harassment complaint -- Alisa Pittman, Esq.

The costly verdict -- resulting from the alleged conduct of a single assistant manager -- underscores the importance of taking seriously the responsibilities of understanding the nature of and responding to allegations of sexual harassment. Moreover, it serves as a cautionary tale to those operators who do not take the problem of sexual harassment seriously, and raises questions that every employer should consider: How could this conduct have occurred? Why didn't the area manager respond to the complaints? Why wasn't the assistant manager ever disciplined? What could the restaurant have done differently? More often than not, workplace sexual harassment liability arises when operators and managers either are unaware of the types of conduct that could constitute sexual harassment or, alternatively, are unaware of the proper way to handle a sexual harassment complaint. For this reason, it is imperative that all employees, and particularly managers, know what categories of conduct are unlawful and can form the basis of a sexual harassment charge. Simply assuming that managers and employees know how to behave without explicit guidelines could, in the end, mean a ticket to the courthouse.