“What Are You Like In Bed?” Not A Good Thing To Ask An Employee…Nor is Groping

By: Amy Epstein Gluck

Just in case you worried because I haven’t written about sexual harassment in a while, do not be alarmed! I’ve been obsessed with my twitter feed, like much of the country. But…never fear! Sexual harassment is alive and well. Indeed, it is thriving.

Last week, a waitress at an Olive Garden in Bay Shore, New York, Amanda Baker, filed a Complaint alleging, among other allegations, that a general manager at the restaurant, James Kaiser, hired waitresses based on their perceived attractiveness, traded raises and promotions for sex, and sexually harassed women who worked there in violation of federal and state anti-discrimination and anti-harassment laws. (Baker v. Olive Garden, E.D.N.Y., No. 2:17-cv-00392, filed 1/25/17).

When I say harassed, I mean really sexually harassed—the severe and pervasive type. The Complaint alleges that Kaiser “groped the breasts” of one woman and told her, “this reminded him of why he hired her in the first place.” Ms. Baker also alleges that he subjected her to “sex talk,” including comments about other female workers’ bodies and what they were or might be like in bed. Disgusting.

Maybe you are desensitized by these types of claims, but consider this—imagine if a person with power and authority over the livelihood of your mother/daughter/sister/ wife (any loved woman in your life) subjected her to this behavior?

What Constitutes Sexual Harassment?

Remember, sexually charged comments or “locker room banter” as an employee or supervisor in the workplace may subject an employer to liability under Title VII of the Civil Rights Act of 1964 if it rises to the level of sexual harassment and/or sex discrimination by creating a hostile work environment. Harassment based on sex, if it is severe and pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive may constitute sexual harassment.

Moreover, the EEOC, the federal agency that enforces Title VII, considers offensive jokes, slurs, epithets or name calling, physical assaults or threats of assaults, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance to be “harassment.”

Indeed, as I wrote about earlier this month here, EEOC is promulgating new sexual harassment guidance following a task force report urging employers to reboot their harassment prevention efforts and identified promising practices for doing so. I think it’s safe to say that ignoring the complaint of harassment is not going to make that list of “promising practices.”

Failure to investigate or take corrective action – a no no

I think Olive Garden is in for some protracted litigation with this one and not just because of the allegations of harassment, which are bad enough. The restaurant did what we always caution employers NOT to do—it failed to investigate or take action against the (former) manager after Ms. Baker first complained about his behavior. Instead, it put Kaiser on leave for anxiety.

Employers: providing an accommodation for a potential disability, does not insulate you from a claim of sexual harassment. When employers tolerate this behavior, they expose themselves to legal action. Plain and simple.

Indeed, when Kaiser returned from leave, the manager was up to his old tricks again and groped another waitress.

Olive Garden finally terminated Kaiser in October 2016. Too little, too late.

So what did Olive Garden do wrong here? It failed to take corrective action. As we just discussed here about potential harassment at another restaurant, employers must address and try to prevent discriminatory treatment and harassment. Once an employer knows about discriminatory or harassing conduct, the employer must investigate it and take corrective measures.

Takeaways – shoulda, coulda, woulda

Specifically, employers should:

  1. Have a clear, no-tolerance sexual harassment policy set forth in your employee manuals and handbooks; ensure it is disseminated throughout your company, and understood;
  2. Have a specific procedure for investigating any claims of sexual harassment and follow it, documenting the process along the way;
  3. Train your employees and executives to be decent and mature human beings, i.e., train them on EEO policies, laws, and…that women are not sexual objects to be groped, pawed at, or propositioned at work;
  4. Encourage reporting of sexual harassment and convey that your company would not retaliate in any way against any person who reported sexual harassment; and
  5. Document extensively any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.

Or end up defending against sexual harassment allegations in court like Olive Garden will have to do.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.