Your Liability for Customers’ Sexual Harassment

Customers’ conduct toward waitress costs pizzeria more than $200,000

Issue:
Another waitress in the restaurant chain you work for as HR manager has quit; this, in itself, is not news, for there is an historically high turnover rate in the hospitality industry. However, this waitress says she quit because she was sexually harassed—by a customer. Occupational hazard? Or possible employer liability?

Answer:
Employers are liable for sexually harassing conduct of customers if

1. The employer knew or should have known of the conduct,
2. The employer has some control over the situation or is otherwise legally responsible for the non-employee’s conduct, and
3. The employer fails to take immediate and appropriate corrective action.

In a situation similar to that described above, a federal appeals court has upheld an award of more than $200,000 to a waitress who was sexually harassed by customers while she served them beer.

Lesson for HR?
Your policies are only as good as the employees who implement them.
The waitress had worked at a local pizzeria for only a short time when she encountered male customers who directed sexually offensive comments to her. Without explaining why, the new waitress told her shift manager that she felt uncomfortable waiting on these customers. According to the company’s policy on harassment for management employees, managers were supposed to ask why. But this manager didn’t.

Later, the men returned and the waitress once again told her manager that she did not want to serve them. No one else wanted to either, and the manager instructed the waitress to wait on them. There was another “incident” that the waitress immediately told to her manager; she asked that someone else serve the men. The policy manual gave the manager the authority to ask customers to refrain from harassing conduct and to ask the customers to leave if they persisted; instead, he ordered the waitress to continue. When the waitress returned to the table, the customer grabbed her by the hair, grabbed her breast and put his mouth on her breast. At that point, the waitress quit her job.

The manager clearly had authority over the waitress and ordered her to wait on the offensive men despite her request not to, which put her in an “abusive and potentially dangerous situation,” according to the court. Just as the policy manual had suggested, the court found that the manager had sufficient notice that “these customers were likely to sexually harass” the waitress, triggering the restaurant’s obligation to respond adequately.

Action for HR?
Training.
As HR managers well know, the existence of a well-drafted policy, if not followed appropriately by managers and supervisors, provides no protection. Here the manager’s insensitive disregard of company policy forced the company to pay a high price for its customers’ behavior.

Source: Lockard v. Pizza Hut, Inc, 10thCir, 74 EPD 45,670.

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