Cook Lines, Cocktails, and Complaints: Limiting Liability for Hostile Work Environment Claims in Food & Beverage Environments
Employers in the hospitality industry experience a host of human
resource and employee management problems that require focused employer
attention and skills, namely in the areas of addressing and limiting
liability related to employee claims of harassment and discrimination,
specialized wage and hour issues, and a variety of other employee
relations concerns. However, perhaps the biggest liability threat to
food and beverage operators is that of harassment complaints by
employees and the employer's failure to remedy the same. Consequently,
employers in the food and beverage industry should manage that risk by
engaging in the appropriate proactive and reactive measures to limit
liability and promote good human resource practices.
The Risk of Inappropriate Behavior in the Workplace
Employers,
under both federal and state law, have an obligation to prevent not
only discrimination as it is traditionally understood, but also
harassment to the extent it rises to the level of creating a hostile
environment. Often times, food and beverage operators have younger and
less experienced workforces who work together in close quarters. Those
factors sometimes equate to a recipe for inappropriate behavior in the
workplace.
Because hostile work environment claims are the
product of a series of events or actions, employers may not have a
clear idea of the best approach to preventing a claim of and limiting
exposure to such claims. Recent developments in hostile work
environment case law indicate employers greatly decrease their risk of
liability by taking certain actions both before and after an alleged
incident of harassment occurs. If an employer fails to appropriately
remedy such harassment, then the damages and penalties for employers
can be great.
The key to limiting liability is to ensure your
company has an anti-harassment and anti discrimination policy with a
complaint procedure, that supervisors and employees alike are trained
on that policy, and that you, as an employer, are exercising reasonable
care to prevent and correct any harassing and/or discriminatory
behavior.
What Should An Employer's Policies and Training Programs Include?
Employers
should consider a number of factors when drafting an anti-harassment
and anti-discrimination policy, as well as in crafting their supervisor
and hourly employee training programs.
An employer's policy
prohibiting harassment, discrimination, and retaliation should be in
written or in computerized form. In addition, that policy should be
distributed to every employee upon hire, with the employer utilizing
and maintaining a form signed by every employee, acknowledging that
he/she has received the policy, read it, and understands it. Moreover,
the policy should prohibit all forms of discriminatory conduct, should
provide a complaint procedure, should set forth a number of avenues of
redress for complaining parties, and include a notice that
confidentiality will be maintained. Finally, the policy should clearly
state that any employee who reports incidents of harassment or
discrimination, or who participates in a related investigation, will
not experience retaliation as a result.
As a second line of
defense, employers should provide mandatory anti-harassment and
anti-discrimination training to employees, particularly to management
level employees. That training can be done internally or an employer
can utilize outside services. The employer should also document every
individual's participation in the training and should cover all forms
of harassment and discrimination. Moreover, the training should be
substantial in temporal length, with a minimum of a half-day total
training. In addition, periodic re-training or updates are advisable.
What Should An Employer Do When It Learns of Inappropriate Behavior?
If
an employer should become aware of inappropriate behavior through a
complaint or other means, it should promptly remedy the problem. The
employer should first investigate the complaint or issue that has been
revealed. Remember, an employer has an obligation to investigate once
it becomes aware of potential harassment/discrimination; a formal
"complaint" is not necessary to trigger the employer's obligation. The
investigation must occur immediately and conclude (as far as an initial
determination) within a reasonable time, regardless of the
justification, any delay in conducting or completing the investigation
will appear far worse and unjustified in subsequent litigation.
In
addition, an unbiased person should conduct or lead the investigation,
which person should document every allegation at the outset. Each of
those allegations should be investigated, with each potential witness
interviewed or contacted individually. The investigator should also
remember to stress confidentiality and non-retaliation to all involved.
Retaliation claims are the most difficult to defend.
Once the
person investigating the claim completes the investigation, that person
should relay the employer's findings and the steps taken to remedy the
problem with the victim. Notably, an employer need not conclude that
harassment or discrimination occurred.
Importantly, the employer
should remember not to punish the victim in any manner; for example,
while separating the victim and the harasser might be an acceptable
step (as a part of an acceptable resolution), transferring the victim
rather than the harasser is typically unacceptable; the exception is
where the victim specifically requests it. The employer should further
encourage the victim to report any future prohibited conduct,
regardless of the conclusion reached in the investigation. The employer
should also consider non-disciplinary steps, including re-training or
additional anti-harassment training, and issuance of a letter
reiterating the employer's anti-harassment policy.
An Ounce of Prevention...
Through
the careful consideration of the particular workforce, and by following
the preventative measures highlighted above, food and beverage
operators can limit liability and promote good human resource
practices. By taking the time to draft the appropriate policies, train
employees, and properly investigate and remedy employee complaints,
food and beverage operators will be ahead of the game by both fostering
employee good will and boosting the bottom line through the prevention
of costly jury verdicts.
Brad Hiles is a partner in the St. Louis office of Blackwell Sanders Peper Martin LLP. He can be reached at 314-345-6489 or at bhiles@blackwellsanders.com. Megan Belcher is an associate in the Kansas City office of Blackwell Sanders Peper Martin LLP. She can be reached at 816-983-8322 or at mbelcher@blackwellsanders.com.
Ms. Belcher and Mr. Hiles represent restaurants and hotels across the
country. Their practice includes compliance counseling, the defense of
discrimination and wrongful discharge charges and lawsuits, union
avoidance counseling, and collective bargaining on behalf of hotel and
restaurant owners and operators. This information provided is general
and educational and not legal advice. For additional information go to www.hospitalitylawyer.com.