Are Restaurants Liable for Customer Sexual Harassment?

Are Restaurants Liable for Customer Sexual Harassment?

July 27, 2020 | sexual harassment

Restaurants Liable for Customer Sexual Harassment?

If you ask the Equal Employment Opportunity Commission (EEOC) and the federal courts, the answer to this question is unequivocally “yes.”

Most waitresses, bartenders, baristas, and other customer-facing restaurant employees work for tips.

As a result, a “polite smile” and friendly demeanor are encouraged. And, these individuals often are reluctant to report customer misconduct.

Many restaurants go by the motto that the customer is always right. Owners and managers view customers as indispensable and employees as disposable.

If you were subject to third-party harassment at a restaurant, you have legal rights. One of the most important rights is a partnership with an experienced attorney.

Supporting Caselaw

Although it is now over twenty years old, Lockhard v. Pizza Hut is still the definitive word from federal courts on the issues of third-party sexual harassment in restaurants.

Rena Lockard was a waitress in Atoka, Oklahoma, a small town located north of the Oklahoma-Texas border.

Atoka is known internationally as the site of the Battle of Middle Boggy Depot in February 1864.

Like most waitresses, Ms. Lockard’s income was almost entirely made up of tips. So, as mentioned above, she experienced severe economic pressure to keep her customers happy.

Micky Jack, her manager, often played the song Freak Me on the restaurant’s jukebox during closing. Ms. Lockard objected to the song’s sexually explicit and demeaning lyrics, but to no avail.

Things came to a head one night in November 1993 when two men with a history of disruptive conduct entered the restaurant.

The wait staff argued over who should serve them, and Ms. Lockard apparently drew the short straw.

One man asked her what perfume she was wearing because she smelled good. When Ms. Lockard said it was none of his business, the customer yanked her hair.

She reported the misconduct to her manager. According to the record, Mr. Jack dismissed her complaint and refused to assign someone else to their table. “You wait on them. You were hired to be a waitress. You waitress,” he said bluntly.

When she returned to these customers, they were even more aggressive. One man grabbed her breast and put his mouth on it. She quit on the spot.

The court held that the restaurant was legally responsible for the sexual harassment Ms. Lockard endured, because:

  • Knowledge: The manager knew about the precise nature of the situation. The takeaway here is, if you encounter sexual harassment, report it. And, do not sugarcoat your story, be specific.
  • Control: The manager could have assigned someone else to the table. Male waiters were on duty that night. But the manager refused this accommodation.
  • Severe: Note that the explicit song itself did not constitute a hostile environment. However, the subsequent hair-grab and groping was too much.

Hostile environment sexual harassment is an environment which is so toxic that it makes certain workers unable to do their jobs.

Quid pro quo harassment is demanding any sexual favor in exchange for any preferential treatment.

Technically, Lockard is only the law of the land in the Tenth Circuit (Oklahoma, Kansas, New Mexico, Colorado, Utah, and Wyoming).

However, it is persuasive authority in other jurisdictions. That includes the Second Circuit (New York, Connecticut, and Vermont). Additionally, Lockard is not the only piece of authority on this subject.

Code of Federal Regulations

The Equal Employment Opportunity Commission has passed a rule in this area.

Admittedly, this rule is rather generic, but it certainly applies in third-party sexual harassment matters.

According to the Code of Federal Regulations, “an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action [emphasis added].”

These qualifications are more victim-friendly than Lockard.

Constructive knowledge, as opposed to actually knowledge, is sufficient.

Furthermore, in terms of corrective action, the EEOC demands an “immediate and appropriate” response. Finally, there’s no severity requirement.

Damages in a sexual harassment claim may include compensation for economic losses, such as lost wages, and noneconomic losses, such as pain and suffering.

Additional punitive damages are available as well, in some extreme circumstances.

Workers do not have to tolerate third-party sexual harassment. For a free consultation with an experienced sexual harassment lawyer, contact Napoli Shkolnik PLLC.

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