Employment Law “Kitchen Fires” – Protecting Your Restaurant Against Sexual Harassment

According to the federal Equal Employment Opportunity Commission (EEOC), the restaurant industry is the single largest source of sexual harassment claims in the U.S. Restaurant employers need to take action to protect their employees from harassment and their businesses from potentially costly lawsuits.

Surveys show 90% of women and 70% of men working in restaurants have experienced some form of sexual harassment from either managers, co-workers or customers, and recent headlines support those statistics. On a regular basis, well-known restaurant companies and celebrity chefs are being hit with sexual harassment claims as well as high dollar judgments or settlements. In March 2022, a Long John Silver’s restaurant in Illinois paid $200,000 to settle a lawsuit over sexual harassment of a teenage female employee by two adult male managers. In July 2021, celebrity chef Mario Batali paid a $600,000 settlement after an investigation revealed widespread sexual harassment of women and men at three of Batali’s Manhattan, New York, restaurants.

Why is sexual harassment so pervasive in the restaurant industry? One reason is that unlike other businesses, the workplace atmosphere in a restaurant or bar is typically more informal and less structured. It’s more susceptible to the type of behavior that constitutes sexual harassment. Another reason is that the industry is still male-dominated. Most owners, chefs and managers are men, and the majority of workers are women. Likewise, many restaurant staffers are younger and less experienced as to what behavior is or is not acceptable. Restaurant employees in lower-level positions are typically more easily pressured or intimidated into tolerating sexual harassment or not making complaints about it to the ownership. Lastly, when restaurant customers or vendors are the source of the harassment, hospitality industry employers can be reluctant to take serious action.

Sexual harassment can turn a workplace toxic, destroy morale and run off good employees.  It is also illegal. Under Title VII of the Civil Rights Act of 1964, it is unlawful to harass a person (an applicant or employee) because of that person's sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, sexual comments and other verbal or physical harassment of a sexual nature, including sexual assaults and abuse.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general. The harasser can be either a man or a woman and the victim and harasser can be the same or different sex. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or even someone who is not an employee of the employer. It is also illegal under Title VII for an employer to retaliate against an employee who has made a complaint of sexual harassment, participated in an investigation of sexual harassment, or has threatened to make a complaint or file a charge of discrimination with the EEOC. 

In a lawsuit for sexual harassment under Title VII, a prevailing plaintiff can recover money damages for lost pay and benefits, emotional distress, punitive damages intended to punish the employer, as well as their attorney fees and costs. Even if an employer ultimately wins the lawsuit, the cost of defending can easily run as high as $100,000, which largely cannot be recovered from the person who brought the lawsuit.

Since it is in the restaurant’s best interest not to have sexual harassment in its workplace, what can you do to prevent it and avoid the potential liability? The first and best step is a clear and unambiguous message from the top to all employees (including managers) that sexual harassment is unacceptable in the restaurant’s workplace culture. However, this has to be backed up with effective and up-to-date written anti-harassment policies. While it is not uncommon for many restaurants, especially smaller ones, not to have an employee handbook, nor is it a legal requirement, it is the most effective way to communicate your anti-harassment and other policies to your employees. It can also be invaluable in crafting a defense against any potential claims. Your anti-harassment policies should be drafted by a human resources expert or employment lawyer and should include:

• • A statement that the restaurant is committed to providing a work environment free of sexual or any form of unlawful harassment or discrimination, and that such conduct will not be tolerated and is grounds for discipline, up to and including termination.
  • Definitions and real-life examples of what constitutes sexual (and other types of) harassment.
  • Specific procedures for how to make complaints if they have been harassed or if they witness other employees being harassed. The policy should identify the specific individual or individuals whom they should report to, and provide alternative reporting options.
  • A statement that all complaints will be investigated by the restaurant, which may involve interviewing witnesses if warranted and, if improper conduct is found, appropriate corrective action will be taken. Investigations should be investigated promptly upon receiving the complaint. Delays in investigating can increase the possibility of liability under Title VII.
  • Your policies should make clear that making a complaint will not subject any employee to retaliation or any other type of adverse employment action.
  • Your policies should also make it clear that it is a mandatory obligation of all employees and managers to abide by the policy and report any incidents of sexual or other types of harassment of which they become aware.

Your policies should also set up procedures for how you will conduct your investigation into any complaints of harassment. In some instances, employers may retain third parties to conduct the investigation, but in most instances, an investigation can be competently conducted in-house.

However, written policies along are not enough. The EEOC has stressed in its guidelines that regular in-person anti-harassment training is also required. At each of these training sessions, all employees, including managers, should sign a form attesting to their attendance at the training session. Set specific expectations for how your managers and staff will handle certain situations. Your training should teach your employees what to look for and what they should do in certain situations—both front-of-house and back-of-house staff.  Multilingual training might be necessary to avoid language barriers.

In addition to the ultimate goal of preventing sexual harassment in your restaurant, having effective policies and training also creates a valuable legal defense in the event you are sued for sexual harassment. In the cases of Burlington Indus. v. Ellerth and Faragher v. City of Boca Raton, the U.S. Supreme Court held that an employer is immune from liability for a supervisor's sexual harassment if the employer can establish: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

In other words, if your restaurant took reasonable care to prevent and correct any sexual harassment by having and enforcing effective policies and providing a way for employees to make complaints, and an employee unreasonably failed to take advantage of such policies, the employer can avoid liability. The case law makes it clear that an employee being afraid to make a complaint is not enough to defeat this affirmative defense.

It’s important to remember that preventing sexual harassment is an ongoing process. Your policies and practices need to be tailored to your specific restaurant and workplace environment and they need to be reviewed and adjusted as need be on a regular basis.

In Part Two of Employment Law Kitchen Fires, we’ll discuss how to avoid getting burned by wage and hour issues and recent changes to the “tip credit” rule.

Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice or guidance.