It seems like everyone’s holding open interviews this week. With summer fast upon us, the restaurant industry will create an average of 500,000 seasonal jobs. But before you staff up with a shiny new temporary workforce, here are some important legal tips to keep in mind:
Pop quiz, restauranteurs – You hire a new part-time dishwasher. He’s deaf. To help him understand orientation training, he asks you for either a closed-caption video or an American Sign Language Interpreter. Do you have to give him either one? This is the issue The Cheesecake Factory has been litigating for the past two years.
Turns out, sexual harassment isn’t the only type of sex-based complaint employers are facing. LGBT-related workplace complaints are on the rise, but unlike with sexual harassment, the law isn’t nearly as clear. In fact, it varies extensively across state and federal courts, leaving many employers at a loss to understand their legal obligations. Let’s take a look at what restaurant owners need to know about sex-based discrimination in the workplace – what conduct is illegal and where.
Innocent Until Proven Guilty? Not in the Workplace: What Every Employer Needs to Know About Handling Sexual Harassment Complaints
The #MeToo movement has taken an interesting turn. When Harvey Weinstein was first accused, it’s hard to remember anyone who came to his defense. The collective outrage against him was swift and furious, and the public immediately demanded his job. Weinstein was fired from his own company three days later and has been a pariah ever since. But when Matt Lauer was accused, the reaction was different. By the time the story broke, Lauer had already been fired, and many saw him as the victim of a bandwagon smear campaign. “Allegations ONLY,” one person tweeted. “I guess guilty until proven innocent is the new norm.”
Truth be told, the restaurant industry was waiting to see who would take the fall. Bro culture has been an open secret in kitchens for years, the last bastion of bawdy behavior on the job. But with the deluge of #metoo stories sweeping the nation, it was only a matter of time before women in restaurants spoke up and spoke out. Employers: learn from the example of John Besh; take control of your corporate culture, or the court will do it for you.
I tweeted a story last week about Georgia Blue, a Mississippi restaurant chain that was sued by a female server for failing to accommodate her religious request. The server was a devout Apostolic Pentecostal Christian who has a religious belief that women should only wear skirts or dresses. Georgia Blue’s dress code requires servers to wear blue jeans, so the server reached out to the company seeking a religious accommodation. When the company didn’t respond, the server showed up to work in a jean skirt. She was sent home for a dress code violation and told “the owner would not stray away” from the company dress code.
We’re pretty far down the rabbit hole with religious discrimination cases. Since Title VII was enacted in 1964, courts have been asked to find sincerely held religious beliefs in everything from the KKK, to veganism to a guy that liked to eat Kozy Kitten People cat food. (Swartzentruber v. Gunite Corp.) (Chenzira v. Cincinnati Children’s Hospital) (Brown v. Pena). But most recently, the United States District Court for the Eastern District of New York held that a team building tool called “Onionhead” was a religion for purposes of Title VII. (EEOC v. United Health Programs of America). Given the ruling, now seems like as good a time as any to brush up on religious discrimination laws in the workplace.
Seven years and $12 million later, Texas Roadhouse has finally cried uncle. The company made the “business decision” to settle its long-running age discrimination lawsuit after a recent mistrial meant potentially facing years of continued legal bleeding. The case is the largest age discrimination suit the EEOC has brought to trial in more than thirty years, and an important reminder for employers everywhere that hiring for age can cost them big.
Settling for Hooters Girls Will Cost You Big: How Hooters Maintains Their Sex Based Hiring Practices
Hooters is one smart breastaurant. They’ve been able to maintain their "Hooters Girl" hiring practices through three lawsuits, including a class action, and an EEOC Commissioner’s Charge that had a settlement demand of over 22 million dollars. They are the gold standard for restaurants with sex based hiring practices. But for those without the resources of a billion-dollar company, Hooters should be a cautionary tale. Hiring practices based on protected characteristics are closely scrutinized by the EEOC and are only justifiable in certain, limited circumstances.
The final employment law lesson from this season of Vanderpump Rules touches on an important and often misunderstood type of discrimination – gender stereotyping. This season we saw the SURvers go on a joint bachelor/bachelorette trip where the men dressed up as women and the women hired a female stripper. This prompted one of the women, who is serving as a groomsman, to claim that this party was redefining traditional gender roles and what it means to be a man and a woman. That statement was more loaded than she probably even knows.
If You Like Hot Employees, You May Get Burned: Discrimination Concerns in Hiring Only Attractive People
There is a popular reality show called Vanderpump Rules that follows a group of aspiring actors and models who work in a restaurant in West Hollywood. Every single one of them is beautiful, as actors and models typically are. They are the ideal fit for the carefully curated aesthetic of the Sexy Unique Restaurant and Lounge (SUR). But while having an attractive staff may just be a nice perk of doing business in LA, for employers outside of the city of dreams, it raises a legitimate question: Is it legal to hire only attractive people? The answer is: It depends on what you find attractive.