Waitresses: Vulnerable To Sexual Harassment


Those who harass vulnerable workers are on the EEOC’s radar.  Not a surprise: this is one of the EEOC’s announced priorities. 

And who are “vulnerable workers?”

The EEOC just announced (like yesterday) a $70,00 settlement with a Florida restaurant franchise.  It was alleged that the owner and manager sexually harassed female employees through unwelcome touching, stalking, and sexual comments. Female servers were repeatedly asked to go out to dinner and groped in a back-storage room and suffered negative changes in their work schedule when they rejected the sexual advances.

Employers must recognize that these are within the class of vulnerable workers.

SEXUAL HARASSMENT IS ABOUT POWER AND MISOGYNY, NOT SEX

I’ve noted many times that 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.  And, as I’ve written many times before, “vulnerable workers” are more likely to suffer sexual assault and harassment.

This is especially true for workers in the hospitality industry, such as waitresses.

WHAT MAKES A WORKER “VULNERABLE?”

Workers are “vulnerable” to discrimination and harassment for many reasons and in many situations, mostly evidenced by their powerlessness and the low status of their jobs. For example, they may be afraid of losing a much needed job; they may fear running afoul of immigration laws; they may be unable to speak English; they may be physically isolated in the job, be it in a field or a warehouse or in a hotel (think room cleaners); or perhaps they are mentally challenged (recall the Henry’s Turkey case – look it up in this blog).

For the most part, waitresses need the job and need to please customers for tips.  They are ripe for exploitation by bosses and patrons, and employers must recognize this and take the necessary steps to prevent and remedy harassment.

This is not the first time that a franchise of this particular restaurant chain was sued for sexual harassment.  Not long ago, eight of them in Nevada and New York settled a case with the EEOC for $700,000 where it was alleged that there occurred “unwanted touching of a female server’s buttocks … [w]orkers also were subjected to vulgar insults and invitations to engage in sexual intercourse and women who complained about the harassment had their hours cut or faced similar retaliation, the EEOC alleged.”

Also consider the suit brought by the EEOC against a South Carolina fast food restaurant on behalf of waitresses, where the EEOC said:

“This incredible case – where an abusive manager allegedly harassed one sister and then another – reinforces the crucial need for employers to take appropriate action to stop unwelcome sexual comments and misconduct in the workplace.”

It was alleged that a male assistant manager subjected a waitress to harassment which “included comments about the size of her breasts, comparing salad dressing to semen, and propositioning [her] for sex.” To make matters worse, it is further alleged that the same assistant manager sexually harassed her sister, who started working there later, which “included comments regarding female genitalia and as well as propositions for sex.”

The complaint alleged that “the assistant manager touched both women inappropriately.”

An Italian restaurant in Orlando settled an EEOC case for $80,000 in which the EEOC alleged that the employer:

“created and encouraged a work environment in which unwelcome, sexually charged comments and conduct was permissible and commonplace, and which allowed for the repeated propositioning of a female bartender. She was asked to go on dates; described to restaurant patrons as single and available to date them; subjected to sexual innuendo; and told to dress ‘sexy’ and ‘date-ready.’”

With reference to the newly-announced settlement, the director of the EEOC’s Miami District Office confirmed that “Sexual harassers that take advantage of their power over employees must be held accountable,” and an EEOC regional attorney noted that “The EEOC will continue to fight for vulnerable workers, including low-wage earners in the restaurant industry, where sexual harassment continues to be so prevalent.”

Takeaway

Employers – especially of vulnerable workers – should understand that, 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.

Employers should not tolerate discrimination or harassment in any form, and 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 good cause is found, remediated promptly.

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Richard Cohen

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]