California Restaurants: Worst Offenders for Sexual Harassment?

A recent special report in the California Business Journal highlighted the rampant problem of sexual harassment in the California restaurant industry. Winer, Burritt & Tillis’s partner, John Winer, featured prominently in the report as a legal expert. In this blog post, we summarize the report and discuss how California’s anti-discrimination laws seek to protect restaurant industry workers from workplace sexual harassment.

 

A Major Problem in the Restaurant Industry

The key takeaway from the special report is that the restaurant industry is rife with sexual harassment. In fact, according to the Business Journal, of all industries surveyed by the federal government from 2005 to 2015, food services ranked as the very worst in the number of reported cases of sexual harassment.

 

Female workers bear the brunt of the problem, although male workers also report experiencing sexual harassment on a regular basis. According to a 2014 survey by ROC United of 688 restaurant workers,

 

[T]wo-thirds of women workers and over half of men workers had experienced some form of sexual harassment from management; nearly 80 percent of women and 70 percent of men experienced some form of sexual harassment from co-workers; and nearly 80 percent of women and 55 percent of men experienced some form of sexual harassment from customers.

 

Think about how significant those numbers are. According to ROC United, the restaurant industry employs nearly 11 million people in the United States. Its study suggests the vast majority of those workers endure sexual harassment at work, many on a weekly or daily basis, from one or more of their supervisors, coworkers, or customers.

 

Tip Work and Fast Food Environments Deepen the Problem

Two factors contribute significantly to the incidence of sexual harassment in the restaurant industry. The first is tip work, which tends to place female servers, in particular, in the position of having to endure customer sexual misbehavior to earn a living. Servers who work for tip wages are less likely to report sexual harassment by customers because they fear retaliation from customers and supervisors if they speak up. This is a well-founded fear. As the Mercury News recently reported, a University of Massachusetts at Amherst study revealed that 64 percent of workers who report sexual harassment are terminated or retaliated against by their employers.

 

Workers in the fast food industry also face severe sexual harassment because of some common characteristics of the fast food workforce. Fast food operators often pay a relatively low wage and hire part-time workers who are young, vulnerable, and less likely to speak out against workplace sexual misbehavior. Recent lawsuits against Del Taco and Blaze Pizza here in California brought allegations that supervisors at the chains subjected teenage employees to unwanted sexual advances and comments at work. In the Business Journal report, John Winer points out that recovering damages against franchise restaurant operators such as these is difficult because California law limits workers’ ability to sue franchise companies for the behavior of their franchise owners in many (but not all) cases.

 

California Law Offers Strong Anti-Sexual Harassment Protections

Fortunately for California’s restaurant workers, state law enshrines strong protections against sexual harassment. The California Fair Employment and Housing Act (FEHA) and its associated regulations broadly prohibit discrimination against employees, job applicants, volunteers, and independent contractors on the basis of sex/gender (including pregnancy, childbirth, or related medical conditions), gender identity, gender expression, or sexual orientation.

 

Sexual harassment constitutes a form of illegal discrimination barred under FEHA. All California employers, no matter how many people they employ, have a legal obligation under the statute and associated regulations not to engage in, nor tolerate, sexual harassment in their workplace by supervisors, non-supervisory employees, customers, or others involved in their businesses. California employers must also:

  • Inform employees of workplace anti-discrimination laws;
  • Develop and distribute a written harassment, discrimination, and retaliation prevention policy (including a version translated into any language spoken by more than 10 percent of the employer’s workforce;
  • And, if the employer employs more than five employees, provide at least one hour of anti-sexual harassment training to all non-supervisory workers, and at least two hours of training to all supervisors.

 

The Department of Fair Employment and Housing (DFEH) is the California state agency tasked with enforcing FEHA. When employers violate the law’s anti-discrimination provisions by engaging in, tolerating, or retaliating against an employee for reporting sexual harassment, or by failing to comply with the rules listed above, DFEH may take enforcement action against the employer. The employer may also face civil liability for damages to employees harmed by the discrimination.

 

Steps for Restaurant Employees Can Take

California restaurant workers who believe their employers have violated FEHA by sexually harassing them, permitting others to harass them, or taking adverse job actions against them for reporting harassment, can file a complaint with DFEH within one year of the incident, which initiates an official investigative process by the Department and may result in penalties against the employer and some form of monetary relief for the employee. They will want the assistance of an attorney to help them with this process.

 

Alternatively, employees who have experienced harassment at a restaurant can file a lawsuit against their employer, with the help of an experienced California sexual harassment attorney, after obtaining what is known as a Right-to-Sue notice from DFEH. The damages recoverable under FEHA may include back and front pay, reinstatement, an injunction directing the employer to take (or not to take) certain actions in the future, attorney fees and costs, compensatory damages, and punitive damages.

 

Finally, restaurant workers and their employers can take proactive steps to prevent harassment in the workplace. The owner and staffers of an Oakland restaurant last year made news with a color-coded warning system that helped them communicate with each other about problematic customers. When a server felt a customer had engaged in sexually inappropriate behavior, the server could communicate her concerns to a coworker by using one of three words: Yellow (indicating a potentially problematic customer), orange (indicating the customer made troubling comments), and red (indicating the customer had acted inappropriately and should be asked to leave). The system isn’t perfect, but it did virtually eliminate red incidents as word got around that the restaurant would not tolerate customer-based sexual harassment.

 

Experienced California Sexual Harassment Legal Counsel

John Winer and his colleagues have extensive experience representing sexually harassed California restaurant workers. Winer, Burritt & Tillis offer compassionate, sophisticated advice to our clients to address and overcome the scourge of workplace sexual harassment. If you have questions or concerns about harassment or discrimination where you work, email our team today or call (800) 652-6137 to schedule a free and confidential case evaluation.