Server Alleges Sexual Harassment in New York Federal Lawsuit Against Restaurant

Sexual harassment in the workplace is a widespread problem throughout the country. Certain types of workplaces seem more prone to sexual harassment than others, but it can be a problem anywhere. A 2016 report by the Equal Employment Opportunity Commission (EEOC) addressed risk factors for workplace harassment and found that restaurants presented a particularly high risk. A lawsuit filed earlier this year contains allegations that demonstrate many of these risk factors. Baker v. Olive Garden, et al., No. 2:17-cv-00392, complaint (E.D.N.Y., Jan. 25, 2017). It also demonstrates another increasingly common feature of employment disputes—the use of alternative dispute resolution (ADR) procedures. The plaintiff voluntarily dismissed the case several weeks after filing it in order to pursue arbitration of the matter.

Most anti-discrimination laws view sexual harassment as a form of unlawful discrimination on the basis of sex. Quid pro quo sexual harassment involves requests or demands for sexual activity or contact in some form as a condition of employment—including getting a job, keeping a job, and various features of employment. The conduct does not need to be this blatant, however. A violation of law also occurs when sexual remarks or overtures—ranging from inappropriate comments or jokes to direct sexual overtures to outright assault—create a hostile work environment.

The EEOC report mentioned earlier identifies risk factors for workplace harassment. These include reliance on customer service, disparities in power among employees, a prevalence of younger employees, and the presence of alcohol. In a restaurant, servers and other employees depend on customers for tips. They may not be able to object to harassment by a customer, or by a supervisor with the power to assign work shifts. Supervisors have considerable power over servers’ schedules and assignments, and many restaurant employees are on the younger side. Many restaurants serve alcohol and might even encourage drinking on the job by some employees. Left unchecked, individual acts of harassment can create a hostile work environment.

The plaintiff in Baker began working for the defendant, which operates a nationwide chain of restaurants, in late 2014, when she was about 23 years old. She worked there for about two years. She alleges in her complaint that her direct supervisor regularly made “sexual remarks and/or comments and/or innuendos and/or crude verbal comments,” and he often “grope[d] and/or touch[ed]…female staff members.” Baker, complaint at 9. She further alleges that this supervisor was often drunk at work.

The plaintiff alleges that, rather than disciplining the supervisor after multiple complaints, the defendant placed him on medical leave. When the supervisor returned to work, the plaintiff alleges that the harassment continued. She claims that the supervisor gave out “raises and/or promotions and/or overtime in exchange for sexual favors and/or sexual intercourse.” Id. at 16. The supervisor was eventually fired in late 2016, and the plaintiff left shortly afterwards. The lawsuit claims retaliation and discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a); and the New York State Human Rights Law, N.Y. Exec. L. §§ 296(1)(a), (7).

The experienced and skilled sexual harassment attorneys at Phillips & Associates fight for the rights of New York City job applicants, employees, and former employees. We represent clients in claims for sexual harassment and other unlawful practices under federal, state, and local laws. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case.

More Blog Posts:

New Report Exposes Widespread Nature of Sexual Harassment in the Restaurant Industry, New York Employment Attorney Blog, August 17, 2015

Former Maitre D’ at Manhattan Restaurant Sues for Sexual Harassment, Retaliation, New York Employment Attorney Blog, July 15, 2015

Report Shows Restaurant Servers Endure Sexual Harassment at Alarming Rates, New York Employment Attorney Blog, December 10, 2014

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