Sex, Alcohol + Where Lines Are Blurred: Understanding Hostile Work Environment Sexual Harassment1/9/2019
In theory, sexual harassment is an easy concept to understand. Most people get the gist of the law – that you can’t harass a person because of their sex. But one of the reasons that sexual harassment continues to be so prevalent (aside, of course, from the fear of reporting or the straight-up disregard for the law), is that many employers can’t see it for what it is. The truth is that sexual harassment is rarely going to appear in your restaurant the way it’s portrayed in the weird anti-harassment videos from the 80s.
It’s going to be complex – often a series of interactions that build upon each other, and often muddied by personal relationships that exist in and outside of the workplace. This is why you need to have sexual harassment training in your restaurant. And why you need to have an employment lawyer on speed dial. And why you need to watch Vanderpump Rules – the reality TV show about twenty-somethings who work at Sexy Unique Restaurant in Hollywood – which never fails to provide solid material for these blogs. This particular lesson: recognizing hostile work environment sexual harassment.
The Circumstances Here’s the long and short of what happened: The story line unfolded over two episodes – the first ending in a “to be continued” cliffhanger about how the owner of the restaurant would respond to the ultimatum she was given by one of the female servers. The server demanded that the owner either terminate the male DJ for his behavior in the workplace, or she, herself would quit. The episodes were titled “Either Him or Me” and “Lisa’s Dilemma” which, frankly, sums it up nicely. The DJ had a long history of appalling behavior in the workplace. In fairness, he’s said terrible things to both male and female coworkers over the years, but this season in particular focused on his demeaning and belittling behavior toward the latter - body shaming, derogatory comments about sexual proclivities, misogynistic name-calling, etc. - some of which was recapped in a montage to make the point. The final straw broke during a work event, when the visibly intoxicated DJ spewed hateful invectives to the server about her weight. So the server gave the owner an ultimatum: He “gets away with speaking with abusive language toward women…I don’t think it’s right that I should have to show up to work and subject myself to that kind of language…I’m not willing to work in a place that it’s tolerated…If he’s still working here, I’m not.” The Law This is the point in time where things typically go south for restaurant owners. Maybe they’re not receiving an actual ultimatum, but in every sexual harassment lawsuit, the spotlight inevitably shines on the moment that the employer became reasonably aware that sexual harassment was taking place in their restaurant. Remember the standard: employers have a legal duty to immediately stop and prevent sexual harassment that they know or should have known was happening in the workplace. The actions that you take once you know or should have known can make the complete difference between a sexual harassment lawsuit and not. Remember also what sexual harassment actually is: harassment of a person because of their sex. Harassment does not have to be of a sexual nature and can include offensive remarks about a person’s sex. It is 100% illegal to harass a woman by making offensive comments about women in general. While the law doesn’t prohibit simple teasing, offhand comments or isolated incidents that aren’t serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment. The Defense Most every character on the show agrees that the DJ’s comments and behavior have long been abhorrent, but many of them excuse it on the basis that it most often happens when he’s drinking or defending himself. This is why the hospitality industry holds the title for the most sexual harassment claims: alcohol + personal relationships among staff is a terrible combination. While there may be a cultural difference between what’s acceptable in a restaurant vs. what’s acceptable in an office environment, the legal standard is exactly the same. You as the employer are responsible to provide a safe and harassment-free workplace, whether you allow - by decree or omission - your employees to drink on the job or not. The Decision While mulling how to handle the situation, the owner said that there were three factors to consider in her decision:
In the eyes of the law, factors two and three have zero impact whatsoever. If sexual harassment is existing in your restaurant, you have a legal obligation to stop it, regardless of the harasser’s feelings or the financial impact on your business. It is precisely this type of situation – where owners begin to rationalize and make justifications – that torpedo a hostile situation between employees into an all-out sexual harassment lawsuit. To her credit, (spoiler alert) the owner terminated the DJ. While you aren’t required to fire an employee for sexual harassment, you are required to put an immediate and effective stop to it, however that shakes out in your particular circumstances. Interestingly during the termination meeting, the owner told the DJ he needs to nix alcohol for the rest of his life. The DJ replied “If you give me one more chance, I promise, I’ll seek help,” which raises the issue for my next blog: protection of alcoholics under the Americans with Disabilities Act. Stay tuned. Oh, and P.S. The second part of the episode showed the owner hiring for her next restaurant, Tom Tom. She says “my perfect Tom Tom employee needs to have a young, vibrant energy.” She may want to revisit how that worked out for Texas Roadhouse. Comments are closed.
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