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Attorneys to operators: Policy not enough to avoid harassment suits

Attorneys to operators: Policy not enough to avoid harassment suits

Managers at The Cheesecake Factory are trained to prevent sexual harassment in the workplace, and a manual outlines the company’s policies about how such complaints should be handled.

Yet earlier this month, the Calabasas Hills, Calif.-based casual-dining chain agreed to pay $345,000 to settle a sexual-harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission, or EEOC, on behalf of six male employees at a unit in Phoenix. The plaintiffs said a group of male kitchen staffers touched their genitals, made sexually charged remarks and even simulated rape. Complaints were made to several managers about the behavior, EEOC attorneys said, but the supervisors didn’t stop it. One of the victims even called the police at one point.

Officials at The Cheesecake Factory say the charges are without merit and the company only settled to avoid further disruption and the expense of litigation.

The case, however, is one of a number of sexual-harassment lawsuits or settlements involving restaurant operators in recent months, involving such national chains as Ruby Tuesday, California Pizza Kitchen, Fleming’s Prime Steakhouse & Wine Bar, and HomeTown Buffet. The recent spate of activity has attorneys urging restaurant operators not only to revisit their sexual-harassment prevention policies but also to ensure they follow through on all complaints.

While training is key in protecting a company from liability, attorneys say, operators also need to make sure they are responding to all charges and putting a stop to inappropriate behavior when it occurs.

“Having a policy isn’t enough; you have to take action,” said attorney Brian Van Vleck, of Van Vleck, Turner & Zaller in Los Angeles. “You can train all you want, but if someone complains about sexual harassment and you ignore it, it doesn’t look good.”

EEOC attorneys involved in recent cases say sexual harassment is an ongoing problem in the restaurant industry, in part because the workforce tends to be young and may not understand how to behave in a professional setting.

All the more reason, those attorneys contend, for restaurant employers to be extra vigilant about training to prevent sexual harassment, establish safe means for victims to report abuse, and follow through on all complaints.

“It’s an industry where a lot of young people start their work lives, and there needs to be better standards set by the adults about what’s OK and not OK,” said Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix district office.

In addition to handling the Cheesecake Factory case, O’Neill’s office also in October filed a lawsuit charging an owner of Alamos Verdes restaurant in Arvada, Colo., with physical sexual harassment and retaliation after a teenage female employee complained about her boss’s groping and inappropriate comments and was fired.

The office also has a lawsuit pending against a Fleming’s Steakhouse unit in Phoenix involving male-on-male sexual harassment, which was filed in 2007.

In early November, the EEOC settled a case against Maryville, Tenn.-based Ruby Tuesday. The casual-dining chain agreed to pay $255,000 to Michelle Gydosh and four other female employees of a Ruby Tuesday unit in Stroudsburg, Pa., where a manager allegedly made crude sexual propositions, sexually explicit remarks about their appearances and lewd comments about other women. Some of the employees were teenagers, according to the EEOC.

In a statement, Ruby Tuesday reiterated that the company admits to no wrongdoing by managers.

“In fact, the EEOC, immediately prior to the settlement, dismissed all allegations against one of the managers they initially accused,” the statement said. “The settlement was merely an agreement to amicably resolve these claims to save the time and costs associated with a lengthy trial.”

Meredith Hammond, a Ruby Tuesday spokeswoman, added that the company has a longstanding commitment to treating all individuals with dignity and respect and has had policies prohibiting harassment and discrimination for years.

Employees must watch a “Respect and Responsibility” video annually and undergo training—and retraining upon promotion—about harassment and discrimination, she said. The company has a toll-free hotline for reporting suspected abuse and emphasizes freedom from retaliation for those who report concerns. A “seasoned HR team” investigates reports.

“We take reports of behavior or actions that are not consistent with this commitment very seriously, and we investigate such actions when we are made aware of them,” she said. “Once we confirm that a violation has occurred, we take swift and appropriate action.”

Officials at Los Angeles-based California Pizza Kitchen also outlined similar practices, including “comprehensive sexual-harassment and anti-discrimination policies and training programs that go far beyond the minimum legal requirement.”

CPK was sued in October by the former employee of a unit in Palo Alto, Calif., who alleged she was sexually harassed by a supervisor who also retaliated when she complained, and discriminated against her for being pregnant.

Kelly Armstrong, an attorney with The Armstrong Law Firm in San Francisco, said her client has no knowledge of being provided with the company policy on sexual harassment.

“Restaurants are a real hotbed for this sort of thing,” Armstrong said. “When there is training, it’s cursory. Managers go and watch a video for a few hours, and that’s it.”

CPK officials said they intend to “formally refute these false statements at a time and in a manner it deems legally appropriate.”

In California, employers with 50 or more workers are required by law to provide regular training to managers and supervisors about prohibiting sexual harassment.

Even outside California, however, attorneys advise their clients to train and develop procedures to address potential harassment. The commitment a company makes in preventing such behavior can protect them from liability—or at the very least, help minimize damages.

Jane Pfeifle, an attorney with Lynn, Jackson, Shultz & Lebrun in Rapid City, S.D., cites a case involving harassment charges at a Famous Dave’s unit in Des Moines, Iowa, that was dismissed by a court of appeals last year.

In that case, a female assistant manager reported inappropriate sexual comments repeatedly made by the restaurant’s general manager. The court, however, found that Famous Dave’s had valid anti-harassment policies in place with nonretaliation provisions. The company’s response to the complaint, while not perfect, was reasonable, and the court ruled in favor of the restaurant.

In responding to sexual-harassment claims, employers also need to consider potential language barriers, attorneys say.

HomeTown Buffet Inc. in August agreed to pay $710,000 to settle a class-action sexual-harassment case filed by the EEOC, which charged male managers, supervisors and co-workers at a unit in El Cajon, Calif., with groping, hugging, kissing, making sexual advances and stalking several young female workers. One victim was allegedly raped by a male co-worker, according to the EEOC.

In that case, the lack of English proficiency among the Latina workers was a factor in the company’s failure to remedy the problem, the EEOC said.

In the case of The Cheesecake Factory, the EEOC attorneys argued that supervisors witnessed the alleged abuse and did nothing.

“The evidence was clear, and everyone knew about it,” said O’Neill of the EEOC. “Behind the lavish decor that the company boasts on its website was a horribly dysfunctional workplace where male workers lived in fear.”

Attorney Anthony Zaller, also with Van Vleck, Turner & Zaller in Los Angeles, however, said he finds it hard to believe an employer today would ignore such behavior.

“I don’t think employers are that naïve to turn a blind eye,” he said. “Especially in this industry with younger workers. Employers have to be on heightened awareness. If people do complain, you need to show they’re taken seriously.”— [email protected]

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