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SHRM Newsletter: Restaurants & Sexual Harassment Claims

11/02/2011

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November 2, 2011

This is Utah SHRM Legal-mail no. 2011-19 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-   RESTAURANTS AND SEXUAL HARASSMENT CLAIMS

-   PROMPT REVIEW AND RESOLUTION IS BEST CURE FOR CLAIMS

-   AN ECONOMIC ANALYSIS OF THE LAW

-   ADA FOCUS…LEAVE TIME AS A REASONABLE ACCOMMODATION

-   TERMINATION OF EMPLOYMENT 101

RESTAURANTS AND SEXUAL HARASSMENT CLAIMS:  Recent news stories have extensively detailed one of the current presidential candidate’s responses to sexual harassment allegations made against him when he worked at the National Restaurant Association a few years ago. These stories have triggered some related stories about possible problems of sexual harassment in the restaurant industry generally. One such news article suggests sexual harassment claims are fairly common in the restaurant industry, perhaps because, in the words of one expert, it’s a very collegial environment with a transient workforce, manager and employees often party together after work, and the industry is said to be very male dominated.  See: http://bottomline.msnbc.msn.com/_news/2011/11/01/8565198-sexual-claims-common-in-pressure-cooker-restaurant-world Indeed, a restaurant chain in North Dakota recently paid $1 million in settlements to 17 employees who alleged they had been the victim of sexual harassment while working.  Interestingly, this settlement required the employer to establish and distribute a policy prohibiting the viewing and dissemination of computer pornography or sexually-explicit material.  The Equal Employment Opportunity Commission (EEOC) has brought a number of lawsuits against restaurants.  Both the EEOC and the industry also have tried to address another possible reason for such claims, i.e. that many restaurant workers are quite young.  See: http://www.eeoc.gov/eeoc/newsroom/release/11-30-04.cfm  Whatever the causes or reasons for all these claims, these news stories are a timely reminder that restaurant employers must be especially vigilant to ensure there is nothing hot and spicy being served up beyond the great food on the menu.

PROMPT REVIEW AND RESOLUTION IS BEST CURE FOR CLAIMS:  When sexual harassment (and other discrimination claims) arise, the best cure remains prompt remedial action.  This point was demonstrated again by a recent ruling from the federal Tenth Circuit Court of Appeals (which has jurisdiction over Utah).  In this federal case, an administrative assistant accused a retired Kansas judge of sexual harassment. The court dismissed the claim because the state had in place a policy, distributed to all employees, that told them how to complain about problems and that required a prompt review/resolution of complaints.  In this case, the employer found the claim meritless, but in other cases courts also have declined to hold employers liable for misbehavior that the employer corrected as soon as it learned about it.

AN ECONOMIC ANALYSIS OF THE LAW: Many Utah HR professionals will fondly remember Jathan Janove, an employment lawyer who used to live and practice law here in Salt Lake City.  Jathan now lives and works in Portland, Oregon.  He is a frequent contributor to HR Magazine and the most recent issue includes Jathan’s commentary on how HR representatives can apply a pragmatic cost/benefit analysis to solving employment law problems.  You can read this very interesting article at: http://www.shrm.org/Publications/hrmagazine/EditorialContent/2011/1011/Pages/1011legal.aspx

ADA FOCUS…LEAVE TIME AS A REASONABLE ACCOMMODATION:  A couple of articles I have read recently suggest some employers remain somewhat confused about their possible obligations to provide leave to an employee with a disability.  Here is a tip or two on that issue.  Many employers make the mistake of thinking that if they provide all available leave under the Family and Medical Leave Act (FMLA), they have satisfied their legal obligations.  While that may be true in some circumstances, some employees may need or ask for leave beyond their FMLA entitlement.  If such an employee is covered by the Americans With Disabilities Act as amended (ADA), such a request for leave is a request for a reasonable accommodation.  An employer should carefully analyze such a claim based on the specific facts presented and should remember that the ADA requires that employers provide such reasonable accommodations unless they pose an undue hardship to the employer.  Any assertion of undue hardship should be carefully (and factually) documented because it is one that may be tested in subsequent litigation.

TERMINATION OF EMPLOYMENT 101:  No one likes to do it, but pretty much everyone has to do it once it a while.  There probably are lots of things about which this statement is true, but certainly for employers it is true about having to fire an employee.  I get calls almost every day asking what legal risks there are related to terminating someone’s employment.  Of course, the facts of each such situation are important and help determine the risk analysis.  However, there are basic considerations that apply to almost every discharge. Utah Business Magazine recently asked me to write these basics down, and so I did.  In case they are helpful to you, here they are: http://www.utahbusiness.com/issues/articles/11502/2011/09/you___re_fired

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.