Jottings By An Employer's Lawyer

Wednesday, January 19, 2005

Hostile Environment in the Kitchen - 7th Cir. Sends Restaurant Sexual Harassment Case to Trial


Disagreeing with the trial court's grant of summary judgment, the 7th Circuit has held that 3 incidents over two years, combined with other testimony showing continuing problems in the workplace, is enough to require a jury sort out whether a restaurant should be held liable for sexual harassment. Loughman v. Malnati Organization, Inc. (7th Cir. 1/18/04) [pdf]. The EEOC has made harassment of teens a special priority, see their specific web site, http://youth.eeoc.gov/. This decision provides a good example of why employers in the industry should beware.

Loughman, who started as a food runner at age 17, and worked for more than three years complained within her first three weeks of inappropriate comments from the kitchen staff ("do you like to have sex?" "would you have sex with me?"), but it was three physical confrontations that were the basis of her sexual harassment suit.

The first occurred after she was on the job for five months, when a kitchen employee caught up with her in the freezer as she was putting food away, "put his arm around her waist, pushed her into a room on the other side of the hall, and tried to kiss her. Loughman pushed him away and walked out, but [the kitchen employee] again caught up to her and blocked her path to the stairs for several minutes before relenting." After she complained to a restaurant manager the next day, the kitchen worker was told he would be fired if he ever touched her again. That warning worked and he did not bother Loughman again.

Nearly a year later, two kitchen employees followed Loughman into a walk in cooler,"turned off the light, and closed the cooler door. Hernandez grabbed Loughman, pinned her against the wall, grabbed her chest, and tried to put his hands down her pants. Loughman screamed and swung her arm, hitting Siffuentes. Siffuentes fell back into the cooler door, opening it. At that point, Hernandez backed away, and Loughman ran out of the cooler." When this incident was reported, a manager supposedly told her:
[T]his is the kind of stuff that's going to happen and something [Loughman] should expect?; "being nice to [the Hispanic kitchen workers] is like playing with fire"; "this is in their culture"; "most Mexicans are pigs"; and that Loughman should "be a bitch to them."
The manager denies making that statement, but for purposes of summary judgment, the Court accepted that it was made.

The third incident was in August 2002, almost 2 years after the attempted kiss, Loughman was talking to a customer on the phone and a driver "walked up behind her, ran his hands through her hair, slid one hand up her shirt, wiggled his fingers on her stomach, giggled and ran away." Two days later, a district manager apologized to Loughman and began investigating the first two incidents that he claimed he had just learned about. (That evidence was disputed as well.) As a result of the investigation, Hernandez, one of the two employees involved in the walk-in cooler incident was fired.

In reviewing the basis for the trial court's grant of summary judgment the appeals court found it relied on the facts that:
[The employee who tried to kiss Loughman] did not bother her after the first incident, that Malnati's eventually fired Hernandez, and that [the driver who stuck his hand up her shirt] apologized to Loughman and was transferred to another store, and concluded "Malnati's not only had a sexual harassment policy in place but had an effective one."
The 7th Circuit view -- a terse, "We're not convinced."

Noting that it was not just physical comments that Loughman was complaining about, but physical assaults, the mere fact that no employee committed two assaults was not sufficient to get the restaurant off the hook. Even testimony that a manager had talked to the kitchen staff 10 to 20 times about their comments to female workers was a double edged sword. The employer arguing it showed diligence in enforcing the policy, the Court noting perhaps it meant at some point the restaurant should have taken a different approach. And the comments about the nature of the kitchen staff, "not helpful." The ultimate determination - let the jury decide.

Anyone who has worked in, represented or probably even been a customer at fast food restaurants could easily envision the events above. No doubt when the whole story is told at trial (assuming one ever takes place) Loughman herself may be implicated in the conduct, the timing and content of her reports will be disputed, in short there will be multiple shades of grey. But where the cost of preparing for and going through a multi-day jury trial and the risks of a runaway jury often drive the decision on settlement, there is little doubt of the impact of this decision on the parties involved.

Many restaurant and fast food franchise owners, which not atypically have young workers and often barely older supervisors, may well think today, that could be me. The remedy -- aggressive training and no tolerance for any inappropriate behavior. A prescription easier carried out in theory than the real world of high turnover and low margins.


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