Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Imagine that your employee comes to you and tells you that a few days ago when she was helping a busboy change out the kegs in the basement, he groped her.
Or imagine that a few of your front-of-house staff tell you that some of the back-of-house staff call them nicknames such as “sexy” or “beautiful,” and comment on their bodies when they go to the kitchen to pick up food.
Or imagine that your employee, a bartender, tells you that at your restaurant’s private event a few days ago, alcohol and drugs were being mixed. She tells you that she was partying with guests and the chef, who gave her drugs and drinks—groped her. Although she admits that she eventually blacked out and does not remember what happened, she tells you that the next day she woke up partially naked, still in the private party space, and with no memory of what happened.1
Whether or not this sounds familiar, or whether or not you have received complaints such as these, it is never too late to reassess your current policies and practices. Sexual misconduct or abuse can occur anywhere. However, given the risks inherent in the food and hospitality industries, as well as the spotlight #MeToo has shone on different industries’ policies and practices, food and hospitality employers should pay particular attention.
The Center for American Progress analyzed data on sexual harassment charges in the private sector filed with the U.S. Equal Employment Opportunity Commission (EEOC) over the past decade.2 From 2005 to 2015, the EEOC received about 85,000 sexual harassment complaints. Nearly half stated the worker’s industry. Of the field-specific charges filed over that decade, a staggering 14.23% of all sexual harassment charges came from the food and hospitality industries.3
Why? The food and hospitality industries are prime breeding grounds for sexual harassment to occur given the working environments, which may involve isolated quarters (such as hotel rooms), late hours (such as the late shift in a bar), small- to medium-sized staff (such as a restaurant), ego-driven work (such as a top culinary personality), and risk factors such as alcohol. These environmental issues are exacerbated by the general idea that the food and hospitality industries are there “to please.” With industries built entirely around providing customers “an experience” and a good time, things can get out of hand.
The EEOC conducted a study in 2016 regarding harassment in the workplace.4 The 130-page report yielded 45 specific recommendations and identified 12 “risk factors”5 concerning workplace harassment. Unfortunately, the food and hospitality industries are saturated with many of these risk factors, which include: cultural and language differences in the workplace; a workforce with many young workers; a workplace with “high-value employees” (for example, a celebrity chef); a workplace with significant power disparities; a workplace that relies on customer satisfaction; isolated work spaces; alcohol; decentralized workplaces (where corporate offices may be removed physically from front-line employees, for example); and coarsened social discourse outside the workplace (such as the #MeToo movement).
Here are some recommendations for employers in these industries:
First, assess your current policies and practices. Now is the perfect opportunity to take a step back and analyze where you currently stand. Certain questions you should consider asking yourself are:
- Are my policies and materials clear? If your policies and procedures are not clear, you risk that they will be handled or interpreted differently by different individuals. This can be problematic when one employee’s complaint is handled differently than another employee’s complaint, which can create a sense of bias. Clarity and uniformity are key in minimizing risk.
- Do my employees know what to do if they need to report sexual harassment? If your reporting scheme is difficult or unpredictable—employees will not be inclined to report. For example, to whom should they report it? How? When? Often, when individuals witness sexual harassment they may not entirely understand what they witnessed. Additionally, they may feel like someone else will likely report it. On the other hand, bystanders are much more likely to intervene in organizations that make their refusal to tolerate harassment clear.
- Do I have to respond to allegations made on social media? Complaints have found a new home—social media. Companies are handling these complaints with a new level of consideration. Now is the perfect time to consider how you would like to handle social media.
- Does my policy comport with recent changes or legislation? Some states are currently legislating training. In direct response to the #MeToo movement, for example, New York now requires employers to maintain written sexual harassment prevention policies and provide annual sexual harassment programs to all employees.
Second, investigate employee allegations. When an employee makes an allegation of sexual harassment, it is important to immediately conduct an investigation.6 The goal of the investigation is to gather complete and accurate information by interviewing witnesses to help you assess whether the harassment occurred. During the interview, you should assess your witnesses’ firsthand knowledge of events—not rumors. It is a good idea to prepare your questions ahead of time and think strategically about the person you are interviewing and their personality, as well as your own.7
Remember that discussing allegations of sexual harassment or assault can be uncomfortable, but you need to be able to discuss the topics that come up during your investigation with an open mind. Do not shy away from the facts.
Third, train your managers and staff. The EEOC’s Task Force Report stated that “effective training can reduce workplace harassment” and “ineffective training can be unhelpful or even counterproductive.”8 The EEOC also recognized that one size does not fit all when it comes to training. Training is most effective when tailored to the specific workforce and workplace, and to different groups of employees. Thus, you should treat training as an opportunity that is specifically tailored to your business. Set specific expectations for how your managers and staff will handle certain situations. Your training should teach your employees what to look for and what they should do in certain situations—both front-of-house and back-of-house staff. Multilingual training might be necessary to avoid language barriers.
Your training should focus on what employees should do, as opposed to what they cannot do. The goal should be to give your employees tools for their “toolbox” to deal with harassment effectively, such as simple intervention techniques (“did you really just say that?”), to good practices such as “the duty to report is in your hands” (and not assuming someone else will report).9 Training should be focused on civility, such as treating others how they would like to be treated.10
Fourth, empower individuals to be truthful and come forward. Your worksite culture will play a large role in whether employees come forward or not. One way to promote this type of culture is to promote bystander intervention and uphold the expectations uniformly.
It is even better to empower individuals to spot potential harassment concerns before they occur by teaching your staff situational awareness.11 Situational awareness is of particular importance in the food and hospitality industries, which can involve late working hours, alcohol, isolated spaces, etc. Situational awareness was also highlighted in the EEOC’s Task Force Report, which noted that, for example, it would be of little comfort to victims of assault when an employer did not know harassment was occurring on the night shift, but did know that they worked in isolation and their schedules were controlled by men.12 In other words, teach your employees to spot potential areas of risk before issues arise.
Fifth¸ prohibit retaliation. When an employee makes a complaint or participates in an investigation, you should make it very clear that the employee will not be retaliated against. An additional layer of complexity in the food and hospitality industries is that potentially undocumented staff might feel pressure to remain quiet due to retaliation regarding visa status. Again, make your anti-retaliation policy clear, follow it consistently, and ensure that all of your staff follows it.
Sixth, prepare for the worst ahead of time. Work with your company's public relations staff to have pre-prepared press releases and social media messages ready to go in case allegations of sexual harassment occur.
It is never too late to update your policies and procedures. Consultation with counsel can be helpful in this process.
1 Example based on 60 Minutes: Mario Batali and The Spotted Pig (CBS television broadcast May 20, 2018).
2 Danielle Paquette, The Industries With The Worst Sexual Harassment Problem, Washington Post (November 24, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/11/24/the-industries-with-the-worst-sexual-harassment-problem/?noredirect=on&utm_term=.8351b9ad6e8f; Sally French, These Industries Have the Most Reported Cases of Sexual Harassment, NY Post (Nov. 30, 2017, 3:16 PM), https://nypost.com/2017/11/30/these-industries-have-the-most-reported-cases-of-sexual-harassment/.
3 The Industries With The Worst Sexual Harassment Problem, supra note 2.
4 Chai R. Feldblum & Victoria A. Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal Employment Opportunity Commission (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm).
6 For example, in the Third Circuit, an employer is liable for employee's sexually harassing behavior under a negligence theory of agency if the plaintiff proves that management-level employees had actual or constructive knowledge about a sexually hostile work environment and failed to take prompt and adequate remedial action. Knabe v. Boury Corp., 114 F.3d 407 (3d Cir. 1997) (emphasis added).
7 Effective Sexual Harassment Training in the #MeToo Era, Littler (June 12, 2018),
8 Chai R. Feldblum & Victoria A. Lipnic, Select Task Force on the Study of Harassment in the Workplace, U.S. Equal Employment Opportunity Commission (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm).
9 Effective Sexual Harassment Training in the #MeToo Era, supra note 7.
12 Select Task Force on the Study of Harassment in the Workplace, supra note 8.