Best Practices Minimize Incidence, Impact of Sexual Harassment Incidents in Restaurants, LeClairRyan Attorney Advises Trade Group

BOSTON, April 12, 2011 /PRNewswire/ -- Late operating hours, close working quarters, the presence of alcohol, and varying ages of employees and patrons render restaurants a ripe environment for sexual harassment. With independent restaurateurs and chains operating locations in Massachusetts subject to especially stringent state laws governing sexual harassment, management should make all efforts to avoid litigation and be in the best position to defend claims that may be filed, advised LeClairRyan partner Janet Barringer Pezzulich during a panel discussion at the recent New England Food Show.

"Isolated incidents in restaurants, such as playful flirting, typically do not reach an actionable level unless they are extremely serious," noted Pezzulich, who is based in the national law firm's Boston office. "However, restaurant operators must be cognizant of how sexual harassment is defined, what the law requires and what must be done to minimize inherent risks."

The panel discussion—"Sexual Harassment in the Workplace: How to Resolve Problems and Avoid Future Occurrences"—covered these issues from both legal and insurance perspectives. In addition to Pezzulich, panelists at the March 21 session at the Boston Convention and Exhibition Center included Richard Falcigno, Esq. and Carolyn Pearce, both of Chubb Insurance; and moderator Richard Mazzarella, CIC, of Twinbrook Insurance Brokerage, Inc.

Pezzulich began the presentation with an explanation of the two different categories of sexual harassment recognized by Massachusetts law. One such category, she explained, is quid pro quo harassment, under which acquiescence to or rejection of sexual advances or sexual conduct is made a condition of employment or used as a basis of employment decisions. The other category, hostile work environment, occurs when verbal or physical conduct of a sexual nature unreasonably interferes with an individual's job performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

"Unwelcome," Pezzulich said, is the key word in all of these cases, adding that in the definition of hostile work environment, "verbal or physical conduct" takes into account comments, remarks and jokes, as well as actions. "When an employee only submits to harassing behavior to avoid being targeted further, to cope in a hostile environment, or because participation is made an implicit condition of employment, he or she is not considered to have welcomed the conduct," she explained. "The employee's rejection of, or failure to respond positively to, suggestive comments or gestures may demonstrate 'unwelcomeness.' Moreover, the fact that an employee may have infrequently joked with the alleged harasser does not demonstrate that the offending person's entire course of conduct was welcome; an employee need not communicate an objection to harassing conduct to demonstrate its 'unwelcomeness.'"

Massachusetts laws governing sexual harassment are unique, Pezzulich told the audience, in that employers are held liable for sexual harassment of employees by managers and other persons with supervisory authority, regardless of whether they were aware of such conduct. Employers may also be liable for sexual harassment committed by persons without actual or apparent supervisory authority—for instance, a restaurant server making sexually charged remarks to another server. In such cases, the  complainant must show that the employer either knew about or should have known about the situation and failed to take prompt, effective and reasonable remedial action. Additionally, in Massachusetts, employers may be liable for the sexual harassment of employees by certain non-employees, such as vendors.

"It is imperative that employers adopt the best practice of immediately investigating any and all complaints pertaining to sexual harassment, and to impart discipline in proportion to its severity," Pezzulich asserted. Just as significantly, she noted, Massachusetts law requires that employers with six or more employees maintain written policies that define sexual harassment, inform personnel that it is unlawful and explain how and with which authorities to file a sexual harassment claim. These policies must be distributed to all new hires and to every employee on an annual basis. Pezzulich advised restaurateurs to obtain written documentation from employees confirming that they have received and reviewed this information, as it helps to avoid any confusion or false accusations down the road. "The policy and sign-off are good practices no matter in which states the restaurants operate," she added.

While formal staff education pertaining to sexual harassment is not mandated for employers in Massachusetts, Pezzulich advised restaurant operators in that state and elsewhere to undertake such training as a best practice. "The absence of in-person or video training, or printed materials may be looked at with disfavor by the courts," she concluded. "An extra layer of protection is worthwhile."

About LeClairRyan

Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 325 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.

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