Can I Get Some Fries With That Shake?

By: Amy Epstein Gluck

The founder of Fuddruckers, best known for their make-your-own-burgers, is facing a $1M sexual harassment lawsuit.  Fuddruckers, indeed!

Beverage, Bubble, Calorie, Caramel

The female assistant manager of one of the Eatzi’s Market and Bakery filed suit against Phil Romano, the restaurateur who founded Fuddruckers and Macaroni Grill, after he allegedly walked behind her during a managers meeting and grabbed her butt with a lascivious grin on his face.

back view of standing young beautiful brunette woman.

Wait, there’s more.

Store cameras caught the butt grab and the s—t-eating grin.  While the CEO blogged about here used the excuse that women are “too sensitive,” Romano ostensibly justified his behavior by stating to the employee that he thinks of her as “one of the guys and didn’t think that this would upset” her.

young man

Just let that sink in a minute.

Who wouldn’t want her (or his) butt grabbed by the boss in the middle of a meeting?

Yes, this is what is alleged in the complaint, but very rarely do plaintiffs in a sexual harassment lawsuit have direct evidence of actual harassment like in this situation where the store cameras taped the entire event.

Title VII of the Civil Rights Act of 1964 proscribes sexual harassment. The Equal Employment Opportunity Commission (“EEOC”) explains that sexual harassment may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Although occasional jokes or obnoxious may not rise to the level of harassment, conduct that is frequent or severe so as to create a hostile or offensive work environment will.

Proving sexual harassment usually requires a careful examination of conflicting evidence and consideration of the circumstances as a whole. However, in this case, where the incident was caught on video coupled with countless district court rules and previous EEOC determinations that this type of incident, even though it only one incident, is considered unlawful.

Let’s look at a run-down shall we?


  • Commission Decision No. 83-1, CCH EEOC Decisions (1983) ¶ 6834 (violation found where the harasser forcibly grabbed and kissed charging party while they were alone in a storeroom);
  • Commission Decision No. 84-3, CCH Employment Practices Guide ¶ 6841 (violation found where the harasser slid his hand under the charging party’s skirt and squeezed her buttocks);
  • D’Annunzio v. Ayken, Inc., 25 F. Supp. 3d 281, 291 (E.D.N.Y. 2014) (holding a single incident of rape constitutes sexual harassment);
  • Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999) (noting a single sexual assault may be sufficient to alter the terms and conditions of the victim’s employment);
  • Dunnegan v. City of Council Grove, 77 F. Supp.2d 1192, 1197-98 (D. Kan. 1999) (determining that single incident of butt grab and breast squeeze constituted sexual harassment)

I could go on and on.

Yes, a single incident of sexual harassment may be severe enough to be actionable.

The Takeaway here is an easy one.   Don’t.  touch.  It’s not funny, it’s not cute, and even if you think your employee won’t mind her butt being squeezed because she’s “one of the guys,” just don’t do it.

By: Amy Epstein Gluck


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]