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.