There has definitely been a tipping point in the U.S. when it comes to sexual harassment in the workplace. It’s been in the news with big movie stars, big media companies, big business, small business and famous restaurateurs all feeling the reaction to the #MeToo movement. It’s not that it’s all of a sudden happening; it’s that it’s finally coming out of the shadows. The truth is sexual harassment is rampant in the restaurant industry. It’s just that we as an industry seem to be looser with what warrants a claim.
As a business owner, it is especially pertinent that you are knowledgeable on the subject. Here are three of the biggest reasons you need to know what the harassment laws are, what constitutes sexual harassment and, more importantly, how to keep your employees safe:
- It can cost you your business
- You are personally liable
- It’s not a matter if, but a matter of when a sexual harassment claim will be made
Federal law prohibits employees from directly suing employers in court. Instead, employees must first file a charge with the Equal Employment Opportunity Commission (EEOC). The premise of this requirement is in line with the preventative nature of Title VII of the Civil Rights Act, to avoid litigation and allow employees and employers to work out their disputes before going to court. That’s another reason you need to know.
I believe that most restaurant owners are aware they may be held liable for sexual harassment caused by their employees, but few are aware of the things they can put in place to minimize both sexual harassment in their workplace and their exposure to liability if harassment does occur.
DISCLAIMER ALERT: Before we get started, I want to be clear that I am not an attorney. Therefore, the information provided in this article is for educational purposes only. It should not be construed as legal advice or replace legal counsel. It is highly recommended that you contact local legal counsel before implementing any harassment prevention program to ensure it addresses all federal requirements and is effective in the state you conduct business.
With that out of the way, I want to first let you know that sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Based on this Act, the EEOC defines sexual harassment as, “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidation, hostile or offensive work environment.”
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser’s conduct must be unwelcome.
There are four types of sexual harassment:
- A supervisor demands a sexual favor of a subordinate in exchange for tangible job benefits such as hiring, promotion, job training, or job retention. This is referred to as quid pro quo, translated as “this for that.” Example: “You want that promotion? Then…”
- When the sexual harassment creates a hostile work environment even though it does not result in a tangible job detriment. (The hostile work environment can be created by a supervisor, co-worker, or even a non-employee) Example: Sexy posters, music with bad language, a customer who tells dirty jokes or makes sexual advances on an employee.
- Gender harassment, where individuals are harassed just because of their gender. Example: women managers cannot close alone, only women can bartend in the day.
- Retaliation, where individuals are punished for alleging sexual harassment. Example: No harassment was found to have happened, so management starts to give the complainant bad shifts.
What is management’s responsibility when it comes to sexual harassment and Title VII?
- Take steps to prevent sexual harassment and/or discrimination.
- When discrimination and/or harassment are found to have occurred, take IMMEDIATE, CORRECTIVE, REMEDIAL ACTION.
Taking Steps to Prevent Sexual Harassment
You must have a sexual harassment prevention policy in place. This policy must be communicated to all of your employees. You can do this by placing it in your employee handbook, posting in on the employee bulletin board and in shift meetings. I recommend you read it at least once a quarter at an employee meeting or pre-shift and remind your employees where it is posted.
It’s not good enough to just say you have a policy. You MUST show by example that the policy statement cannot be violated. For example, if as a part of your policy there will be no inappropriate jokes shared in the workplace, and you, the manager or the owner, tell inappropriate jokes on a routine basis, you have virtually rendered your policy worthless.
As a company, you need to hold workshops with your supervisors and managers to train them on what your harassment prevention policy is, what their responsibilities are, how to handle a claim and the legal ramifications. I suggest you do this at least annually and immediately after any claims have been brought to management’s attention.
Lastly, you need to provide a mechanism for employees to complain and not have to complain first to their direct supervisor. This is particularly important. Why? Because the person who may be accused of sexual harassment may be their direct supervisor. So, your process needs to allow complainants to go above their direct supervisor’s head, so to speak. WARNING: Going above the restaurant owner’s head is the EEOC.
Immediate, Corrective, Remedial Action
The law is very clear when it comes to what you are supposed to do when a sexual harassment claim is made: take immediate, corrective, remedial action. Let’s look at this statement in greater detail.
Step 1 (IMMEDIATE) – Once a claim is brought to your attention, you must investigate the claim. Please note immediate means as soon as it’s reasonably possible. Restaurants have lost sexual harassment cases, even after they did everything right, because they took too long to start the process. If it were me, I would start the process within a day or two. The process is you need to get a statement from complainant, alleged perpetrator, and any co-workers who witnessed the incident.
Step 2 (Make a decision) – Once you have completed your investigation, you are judge, jury and executioner. You have to decide if the what was claimed happened or not.
Step 3 (DOCUMENT) – DOCUMENT, DOCUMENT, DOCUMENT! You get the picture.
Step 4 (CORRECTIVE, REMEDIAL ACTION) – Once you have decided if harassment has occurred or not, you need to resolve the situation with an action “reasonably calculated to end the sexual harassment, discrimination, etc.”
Step 5 (Notify) – You will then have to notify the complainant what you found and tell them what you have done to end the sexual harassment and make sure it will not happen again. Please urge the complainant to continue to communicate as necessary.
Step 6 (Don’t publicize) – You need to make sure that those involved in the investigation, from the managers to the complainant to those interviewed, do not publicize any details of the investigation or incident in question. Otherwise, even if sexual harassment did not occur, you will create a hostile work environment and/or a situation where retaliation sexual harassment will have occurred.
Step 7 (Hold meetings) – As we discussed earlier, hold workshops or meetings with your supervisors and managers to review policies to prevent harassment from happening in the future.
Let this information empower you. You MUST understand what your responsibilities are when it comes to sexual harassment. You MUST understand what exactly sexual harassment is. You MUST take action and do everything you can to prevent sexual harassment in your restaurant. And no matter how good a job you do, odds are it will happen, and you will just continue to improve your prevention policies.
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