Preventing Harassment Claims in the Restaurant Industry
Author: Liz S. Washko (Nashville)
Published Date: January 9, 2018
With so many stories in the news of very high-level, high-profile men being accused of sexual harassment, many employers are rightfully concerned about whether they may be at risk of similar claims. While these stories have crossed various industries, restaurant employers may be at a higher risk than others for these types of claims. According to the U.S. Equal Employment Opportunity Commission (EEOC), 37 percent of all sexual harassment charges filed with the agency were filed by employees in the restaurant industry—and there is some evidence that such harassment claims are underreported.
This is a perfect time for restaurant employers to revisit their anti-harassment policies, procedures, and practices and determine whether modifications are necessary to prevent sexual harassment in their workplaces. This article identifies three key components to an effective anti-harassment strategy that will have the dual effect of protecting employees and protecting the employer from potential liability and negative publicity.
Step 1—Strong Anti-Harassment Policy
Every employer should have a well-written, widely distributed, and well-understood anti-harassment policy. An effective policy contains the following key elements:
a prohibition against sexual harassment and harassment based on other protected characteristics (race, age, disability, etc.)—including an explanation of what qualifies as “harassment” and the type of conduct that is prohibited by the policy;
a statement that violations of the policy will result in discipline up to and including termination;
a message encouraging employees to report policy violations;
information regarding the various channels through which an employee may report any such concerns (and there should be more than one method); and
a prohibition against retaliation for an employee’s making a complaint regarding a violation of the policy.
The policy should be included in any employee handbook and posted in the workplace in a manner designed to ensure all employees have a copy and/or have easy access to it.
With the current climate regarding harassment, employee training provides one of the best opportunities for restaurant employers to make improvements.
All new employees should receive training on the company’s anti-harassment policy. This is particularly important in the restaurant industry which traditionally hires a large number of younger employees who may have little or no prior work experience. Such employees may not understand how to properly address inappropriate conduct they observe or experience and, similarly, may not appreciate the serious consequences of their own inappropriate conduct.
Anti-harassment training should be provided to both managers and nonexempt employees on a periodic basis to remind them of the policies and the goals behind the policies.
Training can be provided online or through video—as long as it is good online or video training. The most effective harassment training, however, is conducted in person by a live trainer with the opportunity for interactive engagement with employees.
While basic training covers the details of the employer’s policies, the best training provides information and real-world examples that illustrate what conduct is unacceptable, how such conduct can adversely affect employees and the workplace, how to address or report any concerns, and the potential consequences for those who violate the policies. The trainer should understand and appreciate the particular work environment of a restaurant and use examples that relate specifically to that environment.
Notably, training provided to managers should be different than that provided to nonexempt employees. A manager who harasses a subordinate employee may expose the company to greater liability than a coworker who harasses the employee. In addition, managers have a significant responsibility to protect the employees they supervise and protect the company from liability. A manager who is aware of or receives a report of harassing conduct is obligated to take action—either by taking direct action to address the issue or by reporting it to higher-level management or the human resources department so that it can be addressed there.
Enforcement is where the rubber meets the road and is another area of great opportunity for restaurant employers. Consistent enforcement of employer anti-harassment policies has the desirable effect of both correcting harassment issues before they grow into bigger problems (and potential liability) and giving employees confidence that the employer stands by its policy.
Enforcement encompasses: (1) an effective procedure for receiving complaints; (2) conducting effective and prompt investigations; (3) taking corrective action where needed; and (4) communicating a result to the complaining employee.
Effective anti-harassment policies identify several channels for employees to report concerns they may have regarding potential violations. The employer needs to make sure that when employees report concerns, an effective means exists to receive those reports, triage them, and make plans to handle them promptly.
Often, this requires some form of investigation. Some complaints can be addressed with a limited review of the complaint and a discussion with the reporting employee; others may require a full-blown investigation. In every case, the employer should promptly review the complaint and gather the facts necessary to understand what occurred.
Once the employer has reached a conclusion, it needs to take appropriate action. If the employer concludes that an accused employee violated the anti-harassment policy, the employer should take corrective action. The level of corrective action is determined by the severity of the offense, whether the employee has been the subject of prior complaints or discipline, and other relevant factors—which may mean verbal counseling up to termination of employment. The corrective action should be designed to put an end to the employee’s inappropriate conduct and, where the employee will remain employed, send a clear message that the offending conduct is not acceptable and will not be tolerated.
Even when a complaint cannot be substantiated, the employer should consider whether to provide training in the restaurant from which the complaint arose or review the anti-harassment policy with the employees involved.
Finally, the employer should report back to the employee who made the complaint that: (1) it conducted an investigation; (2) appropriate action was taken; (3) the employee should report any additional concerns; and (4) retaliation is prohibited and also should be reported.
To the extent a manager was the subject of a complaint or was otherwise aware of it, the employer should remind the manager about the company’s anti-retaliation policy and advise him or her to consult with human resources if there are any issues involving the employee who made the complaint.
Many of the high-profile sexual harassment claims that are making the news today include allegations that the alleged harassment (or worse) had been occurring for years and decades without being addressed. In many cases, it is clear that the complaining employees did not report the misconduct. Employers that have solid anti-harassment policies, provide good, periodic training on anti-harassment issues, and enforce their policies, are more likely to have employees who feel comfortable raising their concerns in a timely manner so that the employer can address them. These steps will help protect employees from inappropriate conduct and protect restaurant employers from potential claims.
Liz Washko is a Shareholder in the Nashville office and the co-chair of the firm’s Pay Equity Practice Group. Ms. Washko represents management in a wide variety of employment matters, at the agency level and in litigation. Ms. Washko has particular experience defending employers in FLSA collective actions, in pay discrimination cases (individual plaintiff and class/collective actions) and conducting proactive pay audits and pay equity analyses. Ms. Washko has served as lead counsel in jury...