Tag Archives: civil rights act

Sexual Harassment in Restaurant Industry

Sexual harassment lawsuits against another employee are not uncommon, but oftentimes employers overlook harassment of their own employees by customers. A 2014 Restaurant Opportunities Center United report about sexual harassment found that 78% of restaurant workers had been harassed at one time by a customer. Title VII of the Civil Rights Act requires employers to provide a workplace free of harassment. If the employer “knew, or should have known about the harassment and failed to take prompt and appropriate corrective action,” they can be held liable. Many guests don’t expect that their behavior will be questioned; many restaurants don’t want to make customers uncomfortable by correcting their behavior. So what is a restaurant to do when a customer harasses the staff?

The first step for restaurants to fix this problem is to have a strong HR department that is serious about preventing and dealing with sexual harassment. It’s clear when employers are using training as a pre-emptive legal defense and when they actually take it seriously. Employees will respond with equal seriousness. If workers don’t feel like policies against harassment will be enforced, they won’t report.

Another step that restaurants can take to prevent lawsuits is proper sexual harassment training. All restaurants need sexual harassment training, not just big ones with HR departments. There needs to be something written down somewhere that’s clearly visible — if this happens, this is how we will respond. In other words, employers can’t just say that all their employees deserve respect; they have to go out of their way to show that they won’t tolerate sexual harassment if there is to be any meaningful change.

See also: Sexual Harassment: Just the Start  

The final way to mitigate sexual harassment lawsuits is through employment practices liability Insurance. Some restaurants consider going without EPLI coverage. Others mistakenly assume they are covered under their general liability policies, which most often have a standard exclusion for employment practices liability exposures. Going without EPLI can be a costly decision. Even if a restaurant only has a few employees, it needs EPLI coverage.

You can find the full report here.

The Hidden Traps in Same-Sex Ruling

Employers should move quickly to review and update as necessary their human resources and employee benefit policies and practices concerning when same-sex partners of employees are treated as the spouses of the employees in light of the U.S. Supreme Court’s June 26, 2015, decision in Obergefell v. Hodges.

Employer and employee benefit plan leaders and their consultants are cautioned that the decision requiring states to allow same-sex couples to marry does not eliminate ambiguities or differences in state laws and documentation of marriage. Consequently, policies, practices and programs for administering the employment and employee benefit rights of married employees need to be carefully tailored to identify and require proof of marriage evenhandedly. Administrators must take into account variances and potential biases in state documentation and practices that could create complications or even liabilities for employers and plans if not appropriately considered.

Since the Supreme Court ruled that the Equal Protection Clause of the U.S Constitution entitled same-sex couples to equal treatment with married heterosexual couples under federal law in U.S. v. Windsor, 133 S.Ct. 2675 (2013), employers have faced several challenges understanding and updating their policies and practices with respect to employees involved in same-sex relationships.

The Obama administration’s aggressive reinterpretation of federal employment, employee benefit, tax and other laws and regulations placed pressure on employers to update their policies and practices concerning when to recognize employees in same-sex relationships as marriages for employment, employee benefits and other purposes.

As the Windsor decision did not address whether the U.S. Constitution also guaranteed same-sex couples a right to marry under state law, disparities in the treatment of same-sex marriages between the states and rapid changes in the state statutory and judicial rules governing these determinations created significant challenges. Employers had to determine if a same-sex couple could marry in a particular state and the right and duty of the employer in response to such an arrangement.

Today’s Obergefell ruling will help to resolve some, but not all, of this uncertainty by answering the question whether states may refuse to allow same-sex partners to marry or refuse to recognize marriages of same-sex partners. The Obergefell decision settles this debate by holding that the U.S. Constitution requires all states to allow same-sex couples to marry on the same terms as apply to heterosexual couples.

Employers still face many challenges. While states must now treat same-sex and opposite-sex couples equally under marriage laws, determining consistently whether two individuals are legally married in any particular state remains anything but simple. Variations in the marriage laws of the states mean the requirements for and proof of marriage can vary significantly.

Care must also be taken to manage potential discrimination risks that might arise from the adoption of policies that treat same-sex vs. opposite-sex partners disparately. There could be administrative complications and compliance risks. There could also be sex discrimination liability exposures under the Civil Rights Act and other laws.

Parties should act promptly and carefully with the advice of counsel to evaluate and update their policies to respond to the new decisions and these other challenges and duties.

Risky Spots for EPL Suits by Employees

A new study of employment practices litigation (EPL) data by Hiscox found four states — California, Illinois, Alabama and Mississippi — along with the District of Columbia, to be the riskiest areas of the U.S. for employee lawsuits. Businesses in these five jurisdictions face a risk that is substantially higher than the national average for being sued by their employees.

According to the study, a U.S.-based business with at least 10 employees has a 12.5% chance each year of having an employment liability charge filed against it. California has the most frequent incidences of EPL charges in the country, with a 42% higher-than-average chance of being sued by an employee. Other high-risk jurisdictions include the District of Columbia (32% above the national average), Illinois (26%), Alabama (25%), Mississippi (19%), Arizona (19%) and Georgia (18%). Lower-risk states for EPL charges include West Virginia, Massachusetts, Michigan, Kentucky and Washington.

Bert Spunberg, a colleague at Hiscox who is a senior vice president and the practice leader for executive risk, says: “Federal level information on employee charges is generally available, but state specific information is more difficult to aggregate. Understanding employee litigation risk at a state level is a crucial step for an organization to establish the processes and protections to effectively manage their risk in this changing legal environment.”

State laws can have a significant impact on risk. For example, the employee-friendly nature of California law in the area of disability discrimination may contribute to the high charge frequency in the state. Discrimination cases filed at the state level in California are brought under the Fair Employment and Housing Act (FEHA). FEHA applies to a broader swath of businesses, covering any company with five employees, vs. a 15-employee minimum for cases brought under federal law as outlined in Title VII of the Civil Rights Act.

Mark Ogden, managing partner of Littler Mendelson, the largest employment and labor law firm in the world, says: “Not only are employment lawsuits more likely in those states, but the likelihood of catastrophic verdicts is also significantly higher. Unlike their federal counterparts, where compensatory and punitive damages combined are capped at $300,000, most state employment statutes impose no damages ceilings. Consequently, employers in high-risk states must ensure that their workforces are adequately trained regarding workplace discrimination, harassment and retaliation and that policies forbidding such conduct are strictly enforced.”

For more on the study, click here.