Examine what your restaurant does to prevent and address workplace harassment. Does your culture promote respect and civility, or does it breed conditions that could lead to harassment? A new Equal Employment Opportunity Commission report finds that organizational culture has the greatest impact on preventing harassment or allowing it to flourish.
The EEOC Select Task Force on the Study of Harassment in the Workplace recommends that employers create a holistic non-harassment culture that includes a commitment from top leadership, accountability at all levels and new approaches to training, among other elements.
What can you do to start building that culture? Attorneys Andy Hament of FordHarris and Jonathan Segal of Duane Morris (a member of the EEOC task force) offer tips that align with the task force report. Here some steps to consider:
Identify your risk factors
- Assess your restaurant for risk factors associated with harassment. For example, restaurants tend to have a younger workforce than other industries, and young employees might feel vulnerable about speaking up. Another risk is the presence of alcohol, which can loosen inhibitions. That risk applies to guests as well as employees who socialize after work. Many sexual harassment issues come out after hours, Hament says.
Being part of a business that emphasizes guest satisfaction also can be a risk factor. An employee might be reluctant to speak up about harassment for fear of displeasing a guest.
Decentralized workplaces – such as places where corporate offices are far removed from front-line employees or first-line supervisors – could be another risk factor.
- Be aware of power disparities. Restaurants sometimes have fewer managers on duty than other businesses, Segal points out. If the one manager on duty is causing the problem, employees might not know who to go to.
- Consider conducting a climate surveyto assess how widespread harassment could be in your company, the EEOC recommends.
- Work with your counsel to identify other risksthat might be specific to your business.
Ensure everyone understands your policy
- Cover your policy in orientation, and train employees and managers separately on it, Hament says. Make sure your training covers “the whole world of discrimination,” not just harassment.
- Explain that you’re providing training to ensure a comfortable environment for everyone, to let everyone know the legal risks and make sure everyone knows the rules as a condition of employment, Segal says. “This has to come from the top,” says Segal, who asks someone from management to speak first when he conducts harassment training. Show this is something your company takes seriously.
- Train supervisors and employees how to respond to inappropriate behavior. For example, a supervisor should ask a guest to leave for using a racial epithet or showing blatant discrimination. Teach verbal and physical tactics to employees to respond to unwelcome behavior, such as saying, “That makes me uncomfortable” or reaching out to shake hands to fend off touching. Make sure your team knows responding is an option, not a requirement, Segal says.
- Train management to model its behavior on what it expects from employees, Segal says. You can’t state, “We’re not going to tolerate sexual comments by customers [or employees],” but then say, “Don’t let it bother you, sweetheart.”
- Communicate your policy and reporting procedures in a variety of methods, the EEOC recommends.
Harassment prevention must start with and involve your company’s highest level of management, the EEOC says. But you need more than just a commitment to a diverse, inclusive, and respectful workplace, it says. Make sure you have systems in place to hold people accountable at every level, in every position, it recommends. And make sure you devote the necessary time and resources for anti-harassment efforts to be effective.
- Train supervisors that they are required to do more than refrain from inappropriate conduct. They should respond proactively to any inappropriate conduct they see or hear, even without a complaint, Segal says. They also must report complaints to HR (or the equivalent), even if an employee asks them to do nothing.
- Make clear that you will hold your supervisors accountableif they hear or see inappropriate behavior and do nothing or fail to report harassment concerns shared with them. Accountability must be a critical message in supervisory training, Segal says.
- Use metrics and performance reviewsto hold mid-level managers and front-line supervisors accountable, the EEOC recommends.
If supervisors don’t act, you risk your brand’s reputation, as well as possible litigation. “If you’re a supervisor, there’s no such thing as being a passive bystander,” Segal says.
Establish a complaint process
The EEOC says harassment is widely unreported. About three of four people who experienced harassment never talked to a supervisor, manager or union representative, according to some studies. They fail to report harassing behavior or file a complaint because they fear disbelief about their claim, inaction or social or professional retaliation.
- Identify at least two people whom employees can go to with complaints, and spell that out in your policy, Hament says. That could be corporate HR and a supervisor in larger companies or an assistant manager and general manager in smaller operations.
- Explain your retaliation policy. In training, emphasize that you treat retaliation the same as discrimination and harassment, Segal says. You don’t want employees not to report harassment for fear of losing their job, poor assignments/fewer tables or other retaliatory measures. “You want to send a really clear message,” Segal says. “From a business standpoint, you don’t want people so afraid to raise something internally that they raise it with lawyers.”
- Train managers (or HR) to respond without re-victimizing the employee who believes he or she is the object of harassment, Segal says. For example, in the case of an inappropriate comment, supervisors should focus their response only on the person who made the inappropriate statement, not the person it was directed at. The supervisor should address the issue right after the incident occurred, so anyone present will know the comment didn’t go unnoticed. Then supervisor then should say he or she will speak privately to the person who made the comment. Generally, disciplinary action should take place in private.
What to avoid: Phrases like “Let it go,” or “I know it’s wrong, but it’s not that bad.” Don’t ask someone in a protected group whether he or she was offended by an inappropriate comment. Likewise, don’t look toward that person when an offensive comment is made and say the commenter was joking. Such behavior also sends an implicit message that if the person weren’t present, the company wouldn’t have a problem with the behavior.
- Get the facts, and treat all complaints seriously, Hament says. Make sure you find out who, what, where and when. Talk to other people who are witnesses.
- Keep it confidential. Reassure the victim you are keeping the issue confidential because of privacy issues, Hament says. If you start gossiping about it, you also weaken the integrity of your policy. “You’ll have these situations simmering all the time,” he says.
- Remember: You are obligated to keep the situation confidential, but be careful you don’t tell employees not to discuss it, Hament says. Employees have a right to bond together and speak about conditions of their employment, according to National Labor Relations Board.
- Take corrective action, Hament says. If a supervisor does nothing, his or her silence could appear to condone the harassment, Segal says.
- Ensure discipline is consistent and doesn’t give (or create the appearance of) undue favor to any employee, the EEOC recommends.
- Consider the severity or pervasiveness of the conduct to determine corrective action, such as coaching, discipline or termination. If someone made a stupid joke, counsel and warn him or her about it, Hament says. If the conduct is more serious, such as using a slur, you might look at a final warning, Segal says. If someone uses a hate word or touches personal areas, you probably should consider termination, he says.
Other factors to consider: the harasser’s position in the organization (the higher up, the higher the expectations), prior issues, and how the organization has responded to similar incidents.
Follow up with the victim
- Thank him or her for filing the complaint and explain that you are taking it seriously, Hament says. Tell him or her you’ll do your best to look into it and do what’s right, Segal says.
- During the investigation, assure the victim you are investigating his/her allegations.
- Assure the victim that you won’t tolerate any form of retaliation. Ask her/him to immediately report any concerns about retaliation.
- After you complete the investigation, meet with victim and let him/her know the outcome. “If you don’t follow up, he or she will likely think you haven’t done anything,” he says.
- After the investigation and wrap-up meeting, follow up a few times with the victimto make sure there are no continuing concerns. That shows you really care about him or her and helps ensure a safe workplace, Hament says.
Train supervisors how to document interviews, evaluations and corrective action. If you get sued, it’s important to support your case with good documentation, Hament says. Although some states allow employers to dismiss someone without establishing just cause, you still have to show why you terminated someone in discrimination or retaliation cases.
This article shouldn’t be construed as legal advice or pertaining to specific factual situations. Consult your legal counsel about circumstances specific to your restaurant.
Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace
Report of the EEOC task force
Laws enforced by the EEOC
NRA Harassment and Discrimination Prevention DVD