A Steak, Medium-Rare, With Sides of Sexual Harassment and Retaliation

By: Amy Epstein Gluck

I read yesterday that two current lawsuits claim that a celebrated steakhouse sustains a culture of sexual harassment, discrimination, and retaliation.

In one of the two cases, a female server alleged that a regular customer grabbed her from behind and “placed his hand beneath her crotch and in between her thighs” while she served an adjacent table.

Just let that sink in a minute.

When this server reported the alleged incident to the assistant manager, the manager “refused” to take action and asked the server not to report it to the police

We’re not done yet.

The plaintiffs in both lawsuits claim that male kitchen employees subjected them to pornographic images and videos on employees’ cell phones while working in the kitchen, and when one complained, the assistant manager allegedly stated, “Oh gee, really … what do you want me to do about it?”

Oh, gee, what are a manager’s obligations under the anti-harassment laws?

Coupled with these harassment allegations against co-employees and third parties are retaliation claims. In one matter, management allegedly omitted one of the plaintiffs from the staff schedule and ultimately demoted her to “part-time” and then terminated her.

One of the cases against the Palm Restaurant is in trial right now, and you can read the entire story here.

Vulnerable Workers and Reporting

We know that sexual harassment exists in every industry. It is especially prevalent among “vulnerable” workers— a hostess at a chain restaurant and other hospitality workers like servers, hotel maids, farmworkers, factory workers, and line cooks.

As Rich Cohen wrote, sexual harassment is, of course, like sexual assault, in that it has little to do with sex and all to do with power differential and misogyny.

This “power differential” is important, which we see in this recent lawsuit filed against the Palm Restaurant.

“Vulnerable workers” are more likely to suffer sexual assault and harassment.

Title VII of the Civil Rights Act of 1964 proscribes sexual harassment by coworkers and third parties in the workplace.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces anti-harassment and anti-retaliation laws, 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.

Consider the suit brought by the EEOC against a South Carolina fast food restaurant on behalf of waitresses where a plaintiff alleged that a male assistant manager subjected a waitress to harassment that “included comments about the size of her breasts, comparing salad dressing to semen, and propositioning [her] for sex.”

And then this manager propositioned her sister. Yep, that’s right. The complaint further alleged that the same assistant manager sexually harassed that plaintiff’s sister, who working there too, with “comments regarding female genitalia and as well as propositions for sex.”

Kitchen, Work, Restaurant, Cook, Chef, Professional

Low-wage workers are especially at high risk of unlawful harassment—they often have more to lose, and, accordingly, they are less likely to report.

The Customer Is NOT Always Right.

We know that one of the main tenets in the service business is—the customer is always right. Right?

Not always. Remember the Costco case? There, the EEOC filed suit against Costco for failing to prevent sexual harassment by a customer of an employee. There, a federal district court judge ruled that Costco violated Title VII by failing to prevent a male customer from stalking and harassing a female employee and failing to take reasonable steps to stop the harassment, considering that the harassment went on for an entire year before Costco banned the customer from the store.

Why would an employer bear liability for acts of a customer?

As I told you here, courts have made it clear that the source of discriminatory treatment doesn’t matter. What matters is what an employer does to prevent or address the discriminatory treatment.

Culture is Key

As I noted here, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, not want it in the workplace, must articulate these beliefs, and hold this same expectation of others in the workplace.

Taking the organizational temperature and authentically focusing the climate on anti-harassment measures seems like a necessary first step. Especially in traditionally male dominated workplaces.

Remember, we told you most recently here and here that (1) organizations that tolerate offensive behavior typically have far greater problems with sexual harassment and, (2) indeed, scientific studies show that organizational “tolerance” is the single most powerful factor in determining whether sexual harassment will occur. In fact, studies have shown that strict management norms and a climate that does not tolerate offensive behavior can inhibit harassment, even by those with a propensity toward such conduct.

As for leadership’s role in the organizational climate? Well…yeah.

When an employee reports sexual harassment, supervisors, HR, or the C-suite, i.e., must take steps to ameliorate the situation, including possibly barring a customer from the premises.

From the top down, an anti-discrimination and anti-harassment tone and policy must be set, and all management personnel as well as line workers must be trained and educated in the basics of discrimination and harassment law, and compliance and its application in the workplace.

Employer Takeaways

Here are some key steps employers can take to ameliorate sexual harassment, and, especially harassment from a customer or client (third-party harassment):

Encourage your employees to report inappropriate behavior from any source, including customers or clients. In fact, include this provision in your anti-discrimination EEO policy. Employers must make it clear by words and deeds that employees have the right to complain about such acts and that their complaints will be heard, investigated, and, if warranted, remediated promptly.

Employers must convey that employees will not be retaliated against for reporting discrimination or harassment. This is critical.

How can an employer get its supervisors and managers on board? Well, supervisors and managers should know that they can be individually sued and liable for failing to report sexual harassment when they see it, retaliating against an employee who reports, or ignoring harassment.

Next, employers must train all employees to recognize and deal appropriately with harassment and other discriminatory behavior, including misconduct by customers.

It is imperative that once management knows about discriminatory or harassing conduct by a third party, the company investigates claim and takes corrective measures.

A final and less academic takeaway:  I’m going to go out on a limb here and say ban porn in the workplace. It is never appropriate at work.

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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.