EEOC News: Food-service industry ripe for EEOC lawsuits

Lynn Bruner is director of EEOC's St. Louis District, which covers the states of Kansas, Missouri and southern Illinois.

The Equal Employment Opportunity Commission receives more than 80,000 charges each year alleging a wide range of illegal activities based on employees' sex, race, national origin, color, religion, age or disability. From this vast array of complaints, EEOC chooses only around 300 in which to bring suit.

The method for selecting cases for suit involves an assessment of whether doing so will advance or clarify a legal interpretation, whether the issue is of public importance, or whether the discrimination alleged was egregious.

When the St. Louis District of EEOC applied the above criteria for selecting cases for suit in fiscal 2003, we found that several of the cases meeting the criteria involved the food-service industry, and alleged issues of egregious sexual harassment of teen-age females.

Q: Is EEOC out to get the food service industry?

A: Not at all! But we are concerned about the incidence of sexual harassment, as reflected in charges and court cases involving that industry.

Of the 26 court cases filed or settled in the District during fiscal year 2003, four were in this category. These were a Burger King in Cape Girardeau, a KFC in St. Louis, a Red Lobster in Kansas City, and a Denny's in Carbondale, Ill.

Across the country, EEOC offices filed 16 suits during fiscal year 2003 against companies in the food service industry involving allegations of sexual harassment, where the victim was often a high-school-age female.

Some suits brought by EEOC resulted in large assessments against the companies involved. For example, in June 2003 the EEOC office in Los Angeles settled a case against Pizza Hut for $360,000. Again in June, a jury in Tampa, Fla., awarded $1.55 million in a suit against Rio Bravo Cantina. Because the ownership of Rio Bravo had changed, the current owners of that company were joined in the suit.

Q: Is EEOC simply too sensitive?

A: Not according to Kansas City Star columnist Mary Sanchez. In an article titled |quot|Fast-food Industry Introduces Some Young Women to Sexual Harassment,|quot| published in May 2003, Sanchez wrote: |quot|The legal standard the EEOC uses is egregious and pervasive.' One off-hand comment will not bring EEOC knocking on the company door. The rape, which allegedly happened to a worker at a Kansas chicken restaurant, is the exception. Rape, just once, qualifies as egregious.|quot|

Q: Why doesn't the food service industry try to stop sexual harassment?

A: Frankly, we at EEOC believe that many companies in the industry do try to prevent harassment, and we understand that there are many hurdles companies must overcome in order to succeed.

According to an article in the Dec. 16, 2002, edition of Nations Restaurant News: |quot|Most food-service employers say they work diligently to combat sexual harassment, a form of sex discrimination prohibited by Title VII of the 1964 Civil Rights Act. Training, stringent policies and zero-tolerance statements are among the methods used to stop the harassment before it starts. Companies also hang posters in employee work areas explaining harassment, promote employee hot lines, disseminate videos and step-by-step instructions on dealing with complaints, and hire outside agencies to try to diffuse problems and complaints.|quot|

Q: Why does sex harassment happen so often in the food-service industry?

A: Explanations abound. One theory is that it's the nature of the business, particularly for those restaurants that use food-service workers to foster an |quot|entertainment atmosphere.|quot| While there may be some substance to this theory, it should go without saying that this explanation would not constitute a viable defense against a claim of harassment.

Another theory is that high turnover rates, coupled with a high percentage of very young employees, makes training of employees extremely difficult.

According to a study on turnover in the food service industry conducted by the Council of Hotel and Restaurant Trainers, as quoted in the Sept. 22 issue of Nation's Restaurant News, |quot|...hourly turnover has dropped 40 percent in the past five years, from 153 percent to 113 percent, and management turnover has decreased 39 percent, from 46 percent to 17 percent.|quot|

While the percentages cited above represent a significant improvement, turnover rates of 113 percent and 17 percent still present a management challenge. In order to be effective, training in identifying and avoiding sexual harassment must be continuous to ensure that current hourly employees and managers are aware of the issue, and know how to respond.

Q: What's a company in the food service industry to do?

A: One important rule to remember is that while it may not be possible to eliminate sexual harassment and other forms of harassment in the workplace, it is possible for a company to respond to those complaints in a manner that will help to limit its liability.

In addition to education of staff, other important steps a company can take are to implement an effective grievance system that employees can trust, then act promptly and appropriately to investigate complaints and to quickly remedy any harassment that occurs. The terms |quot|promptly|quot| and |quot|appropriately|quot| have been given specific meaning by the courts, as have the terms |quot|investigate|quot| and |quot|remedy.|quot| Therefore, companies must be both knowledgeable and careful when they implement such systems.

When a company operates numerous outlets, such as fast food and restaurant chains, its central headquarters should make certain that all its regional and local managers are sufficiently trained on the issue of harassment, and are aware of the company's policies related thereto. When District EEOC staff members investigate complaints of harassment, they often find that local managers are unaware of national policies, or have not been adequately educated as to their role in identifying and preventing harassment in the workplace.

Q: Can EEOC help?

A: Most definitely! In addition to its enforcement role, EEOC dedicates a lot of its resources to educating employers about the requirements of the law, and helping them stay out of trouble. EEOC's Web site at www.eeoc.gov contains extensive information and legal interpretations, including EEOC's Guidelines on Sexual Harassment.

As part of its Small Business Initiative, EEOC provides guidance in all areas of the law in clear, easy to understand language. EEOC conducts training seminars each year, and will design and deliver training to fit an employers needs.