Seventh Circuit Upholds Waitresses’ Sexual Harassment Claim, Finds Anti-Harassment Policy to Be Ineffective

The Seventh Circuit Court of Appeals issued a ruling recently upholding two waitress’ claims of sexual harassment against the IHOP restaurant where they worked, finding its “zero tolerance” harassment policy to be “illusory.” New York, with its many restaurants and thousands of restaurant workers, should take note of the decision. The case originated in Wisconsin, but it could have benefits for restaurant workers in New York and elsewhere in the country.

Katrina Shisler and Michelle Powell were teenagers when they worked at the IHOP in Racine, Wisconsin. Shisler first worked there in 2004, when she witnessed sexual harassment against other employees. She reported the matter to management but got little response. She went back to work there in March 2005. She alleged that a manager, Rosalio Gutierrez, engaged in frequent harassing conduct towards her, including statements that he wanted to perform lewd acts involving pancake batter, staring at her body, and touching her back or buttocks. Management did not act on any of her complaints. She was terminated in April 2005, allegedly for violating a policy related to employees providing coupons to customers.

Powell worked at the restaurant from December 2004 to June 2006. She alleged that she also endured harassment by Gutierrez, although she tried to ignore it at first. She reported that his harassment became more overt, including pulling her hair and repeatedly making sexual comments about her to other employees. Her complaints to management also received little to no response. Both Shisler and Powell said that they eventually “learned not to say anything.”

Shisler and Powell reported the matter to the Equal Employment Opportunity Commission (EEOC), which conducted an investigation and filed a federal lawsuit against the restaurant, its owners, and its HR consulting firm, claiming violations of Title VII of the Civil Rights Act of 1964. The case went to trial in November 2009, featuring testimony from multiple current and former employees about harassment by several managers. The jury ruled in the plaintiffs’ favor on the sexual harassment claims and awarded $105,000 in total damages. most of which went to Powell.

The defendants filed a motion for judgment as a matter of law after the verdict, claiming that “no rational jury” could have concluded that Shisler’s and Powell’s experiences amounted to a hostile work environment. The EEOC moved the court to hold the defendants jointly and severally liable for the judgment amount. The trial court denied the defendants’ motion and granted the EEOC’s motion, meaning any one of the three defendants could be liable for the full judgment amount. The defendants appealed.

The Seventh Circuit upheld the trial court’s finding that sexual harassment had occurred. It specifically noted that the defendants had created or allowed a hostile work environment, despite their claimed “zero tolerance” policy towards sexual harassment and required training for management. The court concluded that “a rational jury could have concluded that, not only was the policy and the management training ineffective, but the protections offered by them were illusory.”

The Seventh Circuit reversed the trial court’s finding of joint and several liability, however. It remanded the question of whether the HR consulting firm, Flipmeastack, Inc., should be liable to the plaintiffs.

The New York sexual harassment lawyers at Phillips & Associates represent victims of workplace sexual harassment and discrimination, fighting to protect their rights. To schedule a free and confidential consultation, contact us today online or at (212) 248-7431.

More Blog Posts:

Sexual Harassment Suit Against Radio Station Describes Work Environment Similar to Television’s “Mad Men,” New York Employment Attorney Blog, January 19, 2012
Waiter Sues Manhattan Restaurant for Sexual Harassment, Claims Celebrity Chef Did Nothing to Protect Employees, New York Employment Attorney Blog, January 10, 2012
Hairdresser Files $16M Sexual Harassment Lawsuit Against Upscale New York Salon, New York Employment Attorney Blog, November 28, 2011

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