Photo courtesy David Scott Peters

Anyone who has worked in restaurants knows sexual harassment is rampant in the industry. Protect your employees and your business with knowledge on the subject. 

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Based on this Act, the EEOC defines sexual harassment as, “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidation, hostile or offensive work environment.”

Owners and managers need to know what the harassment laws are, what constitutes sexual harassment and, more importantly, how to keep your employees safe because:

1) It can cost you your business

2) You are personally liable 

3) It’s not a matter if, but a matter of when a sexual harassment claim will be made

DISCLAIMER ALERT: I want to be clear that I am not an attorney. The information provided in this article is for educational purposes only and should not be construed as legal advice or replace legal counsel. I recommend you contact local legal counsel before implementing any harassment prevention program to ensure it addresses all federal requirements and is effective in the state you conduct business.

Federal law prohibits employees from directly suing employers in court. Instead, employees must first file a charge with the Equal Employment Opportunity Commission (EEOC). The premise of this requirement is in line with the preventative nature of Title VII of the Civil Rights Act, to avoid litigation and allow employees and employers to work out their disputes before going to court. 

What is your responsibility when it comes to sexual harassment and Title VII?

1. Take steps to prevent sexual harassment and/or discrimination.

2. When discrimination and/or harassment are found to have occurred, take IMMEDIATE, CORRECTIVE, REMEDIAL ACTION.

Taking steps to prevent sexual harassment

You must have a sexual harassment prevention policy in place and it must be communicated to all employees. Place it in your employee handbook, post it in on the employee bulletin board and in shift meetings. Read it at least once a quarter at an employee meeting or pre-shift and remind your employees where it is posted.

You MUST also show by example that the policy statement cannot be violated. For example, if as a part of your policy there will be no inappropriate jokes shared in the workplace, and you, the manager or the owner, tell inappropriate jokes on a routine basis, you have virtually rendered your policy worthless.

Hold workshops with your supervisors and managers to train them on what your harassment prevention policy is, what their responsibilities are, how to handle a claim and the legal ramifications. I suggest you do this at least annually and immediately after any claims have been brought to management’s attention.

Lastly, you need to provide a mechanism for employees to complain and not have to complain first to their direct supervisor because the person who may be accused of sexual harassment may be their direct supervisor. So, your process needs to allow complainants to go above their direct supervisor’s head, so to speak. NOTE: Going above the restaurant owner’s head is the EEOC!

IMMEDIATE, CORRECTIVE, REMEDIAL ACTION

The law is very clear when it comes to what you are supposed to do when a sexual harassment claim is made: take immediate, corrective, remedial action. 

Step 1 (IMMEDIATE) – Once a claim is brought to your attention, you must investigate the claim. Please note immediate means as soon as it’s reasonably possible. Restaurants have lost sexual harassment cases, even after they did everything right, because they took too long to start the process. Aim to start the process within a day or two and get a statement from complainant, the alleged perpetrator, and any co-workers who witnessed the incident.

Step 2 (Make a decision) – Once you have completed your investigation, you are judge, jury and executioner. You have to decide if what was claimed happened or not.

Step 3 (DOCUMENT) – DOCUMENT, DOCUMENT, DOCUMENT! You get the picture.

Step 4 (CORRECTIVE, REMEDIAL ACTION) – Once you have decided if harassment has occurred or not, you need to resolve the situation with an action “reasonably calculated to end the sexual harassment, discrimination, etc.”

Step 5 (Notify) – You will then have to notify the complainant what you found and tell them what you have done to end the sexual harassment and make sure it will not happen again. Please urge the complainant to continue to communicate as necessary.

Step 6 (Don’t publicize) – You need to make sure that those involved in the investigation, from the managers to the complainant to those interviewed, do not publicize any details of the investigation or incident in question. Otherwise, even if sexual harassment did not occur, you will create a hostile work environment and or a situation where retaliation sexual harassment will have occurred.

Step 7 (Hold meetings) – As we discussed earlier, hold workshops or meetings with your supervisors and managers to review policies to prevent harassment from happening in the future.

Let this information empower you. No matter how good a job you do, odds are it will happen. Be prepared.