Employment Law “Kitchen Fires” – Avoiding Employment Discrimination
There could be costly consequences for not staying compliant with federal anti-discrimination regulations. Find out which rules apply to your restaurant and why you should structure your policies to meet them.
If your restaurant employs 15 or more employees, you are covered by Title VII of the Civil Rights Act of 1964 (Title VII), which bars discrimination in employment on the basis of race, color, religion, gender, pregnancy or national origin.. You are also covered by the Americans with Disabilities Act (ADA), which protects against discrimination on the basis of a disability and imposes a duty to reasonably accommodate applicants or employees with a disability. If your restaurant employs 20 or more workers, you are covered by the Age Discrimination in Employment Act (ADEA), which bans discrimination on the basis of age and protects employees 40 years of age or older. These laws are enforced through the federal Equal Employment Opportunity Commission (EEOC) and can serve as the basis for civil lawsuits against employers.
Much like sexual harassment claims, the restaurant industry is often on the EEOC and plaintiffs’ attorneys’ radar when it comes to discrimination claims under these statutes. In one case in Maryland, a restaurant paid $1.3 million to settle claims of race discrimination for refusing to hire African Americans for front-of-house positions. A well-known national restaurant chain was sued by the EEOC for disability discrimination for allegedly refusing to hire a qualified deaf applicant for a dishwasher position. Another national restaurant group settled an age discrimination claim for $2.85 million for allegedly not hiring applicants over 40 for front-of-house and back-of-house positions.
As detailed in Part One of Employment Law “Kitchen Fires,” the key to avoiding liability for discrimination is to have strong equal employment opportunity policies. These should include express rules against discrimination, clear methods for employees to report any such complaints, and training of supervisors and human resource managers on how to investigate discrimination claims and respond to confirmed allegations. In addition to providing a structure to fight workplace discrimination and harassment, having such policies in place provides a restaurant employer with valuable legal defenses.
Because the restaurant industry often has a diverse workforce, an issue in recent years has been “English-only” workplace policies leading to lawsuits against restaurants. The EEOC has long taken the position that English-only language policies in the workplace will be presumed to violate Title VII on the basis of national origin discrimination. “English-only” policies are only legally permissible in very limited circumstances where they can be justified by business necessity. This can include communicating with customers, co-workers or supervisors who only speak English or in regard to safety or emergency situations. However, such rules need to be narrowly written and cannot be enforced during non-working periods, such as breaks or meal periods. Before implementing any such policy, a restaurant employer should carefully consider if there is a valid need for such a rule and consult with counsel before putting it in place.
Under the ADA, a restaurant has an affirmative duty to reasonably accommodate applicants or employees with a disability, unless it would result in an “undue hardship.” Such a reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done to allow the disabled individual to perform the essential functions of the job. This can include ramps, accessible restrooms, job restructuring, ergonomic work stations, acquiring or modifying equipment or adjusting schedules.
Once a restaurant employer is made aware of the need for an accommodation, it is required to engage in an interactive process with the worker. It is important to remember that the employer need not agree to an employee’s preferred accommodation, as long as what is offered is reasonable and permits the worker to perform the essential functions of their job. For purposes of not accommodating a disability, “undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial or disruptive, or those that would fundamentally alter the nature or operation of the business.
Restaurants are also under a duty to reasonably accommodate an employee under Title VII if a workplace rule or practice is in conflict with the employee’s sincerely held religious beliefs and practices. This most often arises in situations involving dress codes or scheduling employees to work on a Sabbath day or during religious holidays. As with the ADA, the employer is required to engage in an interactive process. But the standard for what constitutes undue hardship in a religious context is much lower, and employers can deny the religious accommodation if the cost or difficulty goes beyond a minimal level. All accommodation situations should be addressed on a case-by-case basis.
In Part Four, we’ll wrap up the series by looking at some commonly overlooked employment law kitchen fires that are easy to avoid but costly if ignored.
Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice or guidance.
