Throughout my short time on this planet I have run into several sexual harassment plights. From my manager being fired to my brother being accused, arrested, and finally acquitted. This topic has hit close to home...

1. SEXUAL HARASSMENT IN THE RESTAURANT INDUSTRY
AN EMPLOYER’S PERSPECTIVE
by
david harold moore
November 27, 1995

2. page ii
CONTENTS
Title Page
Point of Interest 1
1. INTRODUCTION 1
Where the Industry is Now 1
2. SEXUAL HARASSMENT 3
Sex Discrimination 3
Sexual Harassment 4
Quid Pro Quo 5
Hostile Environment 6
Third Party Sexual Harassment 7
Sexual Favoritism 7
New Age Sexual Harassment 8
Women Harassing Men 9
Same Gender Harassment 9
Summary 10
3. THE BALANCE 10
Guidelines to a Proactive Policy 11
A Proactive Policy Outline 12
4. CONCLUSION 14
5. REFERENCES A

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SEXUAL HARASSMENT IN THE RESTAURANT INDUSTRY
AN EMPLOYER’S PERSPECTIVE
Throughout my short time on this planet I have run into several sexual harassment plights.
From my manager being fired to my brother being accused, arrested, and finally acquitted. This
topic has hit close to home as I am sure it already has or will hit close to yours.
INTRODUCTION
As will be shown through the discussion of this topic -- sexual harassment is serious
business. Business being the keyword. Do not think for one-second that each and
every business throughout this country will not be confronted with the issue of sexual
harassment. The restaurant industry is not free from public criticism regarding sexual
harassment just because there has not been much controversy to date. In truth, this
could and probably will become the most colossal threat to the ‘hospitality vibe’ this
industry has tried so hard to create.
With the terms sex discrimination, quid pro quo harassment, hostile environment
harassment, third-party sexual harassment, sexual favoritism, and new age sexual
harassment becoming the buzz words for the 90’s, there truly is something important to
worry about. However, with a clear understanding of what these terms mean as well as
understanding how to handle each plight set before the employer, a proactive policy
can be created. This policy is what may save the employer millions of dollars.
Where the Industry is Now?
In the May 8, 1995 issue of Nation’s Restaurant News, there is a perfect example of
where this archaic industry is heading. Chris Sullivan, CEO of the Outback Steakhouse,
states in reply to sexual harassment worries, “We’re focused on the development of our
people. You’ve got to have employees who will deliver. And they can do that only if they’re

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motivated”. The article goes on to say that these motivated people should be focused on
quality and other ‘things’ should not get in the way if you give your people a piece of
the action. This is then supported by James Near, chairman of Wendy’s, who states “If
you worry about quality issues, other things like sexual harassment won’t even exist.” It is this
infectious ignorance that will be the downfall of these companies. However
unbelievable, this is only one of the two impetuous extremes.
The other extreme being the concept of zero tolerance. As Deborah Hollis, VP for
Hardee’s, states, “We must take affirmative steps and let our people know that we have zero
toleration policies. In addition, we have made it clear that we don’t tolerate fraternization
between managers and non managers. The restaurants had once been a social club and we
emphasized that they’re places of business by terminating managers because of sexual
harassment issues. That made everyone take notice!”. (Kapner, 1995) It is the combination
of these two extremes that should scare the employer to death.
The reason being quite simple; there is a strong closeness to those who work in
restaurants. Restaurants are tight working units. The machinery that makes a
restaurant work are people. The people must have fun together to create a hospitality
vibe which is not quantifiable in dollar terms. It is this closeness and vibe which can
make the difference between a great restaurant and just a good one. Service is the
intangible difference which is in jeopardy due to the extremist and reactionary views
iterated above. It is the balance of these two views which must be striven for to attain
the all too essential hospitality vibe

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The question remains, what is the balance? Before a balanced policy can be created, the
intricacies of the sexual harassment issue must be understood.
SEXUAL HARASSMENT
Before beginning with sexual harassment the term sex discrimination must be explained
since it is the basis of sexual harassment.
SEX DISCRIMINATION
The wide spread existence of sex discrimination, the act of making differences and
distinctions between the sexes, against women is well documented. Women’s salaries
are typically lower than those of men and discrimination often presents a glass ceiling
that thwarts women in advancing their careers (Lee, 1995). However, the same can now
be said of both men and women due to the increase of women in the workplace as well
as the prominence of homosexuality. Besides the now obvious examples above, sex
discrimination usually leads to lower overall productivity of an organization’s work
force -- this is not an employer’s organizational goal.
Ignorance is Bliss Zero Tolerance

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The many laws addressing sex discrimination, and therefore sexual harassment, include
the Equal pay act of 1963 which required equal pay for equal work between the sexes and
Title VII of the Civil Rights Act of 1964 which prohibited sex discrimination with respect
to terms, conditions, and privileges of employment. In Addition, special protections
against various forms of sex discrimination are available to government workers
through the due process clause of the Fifth and Fourteenth Amendments as well as the
equal protection clause of the Fourteenth Amendment. Finally, state and local cases may
be filed using the Civil Rights Act of 1871 (also known as Section 1983 Suits since the
legislation is codified at 42 U.S.C. 1983). (Lee, 1995) However complex, Title VII of the
Civil Rights Act of 1964 is the main piece of legislation regarding sex discrimination and
sexual harassment cases.
Although sex was of comparatively minor concern in drafting the Civil Rights Act of
1964, the Title VII ban on sex discrimination has been interpreted to include sexual
harassment (Lee, 1995).
SEXUAL HARASSMENT
Sexual harassment is a form of sex discrimination. Under both state and federal law,
sexual harassment means (1) sexual favors sought for employment benefits or
detriments (quid pro quo), or (2) harassment of a sexual nature which unreasonably
interferes with an individual’s work performance or creates an intimidating, hostile or
offensive work environment (hostile environment). (Rizzotti, 1995)
The employer is liable for these sexual harassment claims due to the Civil Rights Act of
1964 which acknowledged the parameter of employer liability under traditional agency
principle of respondeat superior; which is to say that the employer must respond for the

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wrongful acts of managing employees when such acts arise out of the scope of the
managers’ employment (Sherry, 1995). In addition, the Civil Rights Act of 1991 has given
victims the right to sue for punitive and compensatory damages as well as back pay
(Kruger, 1995). This Act can, and has, brought multi-million dollar judgments against
the employer.
The employer must not forget that those who are sexually harassed can experience
sever harm in terms of their careers, personal finances and mental health (Lee, 1995).
This is the basic reason for the law. After all, the law is the lowest common
denominator for socially acceptable behavior (Goll, 1995).
Again, there are two basic types of sexual harassment -- quid pro quo harassment and
hostile work environment harassment.
QUID PRO QUO HARASSMENT
Quid pro quo discrimination arises when a supervisor or coworker pressures an
employee to engage in unwelcome sexual activity in exchange for a job benefit or to
avoid the threat of a job detriment (Rizzotti, 1995). It is also know as sexual extortion
(Lee, 1995).
A classic example of a quid pro quo discrimination is a supervisor who demands that a
subordinate engage in sexual activity in order to receive a promotion. The more
gregarious the behavior the more likely there being a punitive damage award. (Rizzotti,
1995)
Quid pro quo actions, unlike those involving a hostile environment, have never been
heard by the Supreme court. This is because the issues involved are fairly

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straightforward as opposed to the difficulty of defining hostile environment harassment.
(Lee, 1995)
HOSTILE ENVIRONMENT HARASSMENT
A hostile environment exists wherever employees are exposed to persistent and
unwelcome lewd remarks, sexual taunting, talking in seductive tones, queries about
one’s personal life, suggestive sounds, obscene gestures, pinching, touching, and
references to anatomy and physical appearance by anyone entrusted with control of
company policy if the acts were performed in the execution of a corporate function
(Sherry, 1995).
In order to prevail in a claim of hostile environment sexual harassment, one must show
five conditions: (1) one must belong to a protected group, (2) one was subject to
unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment
affected a term, condition or privilege of employment, and (5) the employer knew or
should have known of the harassment and failed to take proper remedial action (Lee,
1995).
According to the Equal Employment Opportunity Commission’s (EEOC) proposed 1993
guidelines there are two types of hostile environment harassing behavior. The first
refers to “epithets, slurs, negative stereotyping, or threatening, intimidating, or hostile acts”.
The second type of behavior consists of “written or graphic material that denigrates or
shows hostility or aversion toward an individual or group... and that is placed on walls, bulletin
boards, or elsewhere on the employer’s premises or circulated in the workplace.” Instances
include posters showing people explicitly engaged in sexual acts, E-mail messages of a
sexual nature broadcast to employees, and employee clothing, such as tee shirts, with
sexual drawings or slogans (Lee, 1995).

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As can be seen here, there is much congruency of what hostile sexual harassment
consists of but there are also some non-congruencies. Such as the render of the act
being only a supervisor or both a supervisor and coworker. Also, what restaurant does
some of this not happen in? The only saving grace may be the EEOC’s use of the
‘reasonable person’ standard.
This standard refers to what is regarded as socially acceptable behavior (Lee, 1995). The
obvious problem in applying such a standard is that behavior considered acceptable in
some work places might well be considered unreasonable in others. The restaurant
industry and construction industry come to mind. Again, a complex issue which must
be understood to proactively guard against.
THIRD-PARTY SEXUAL HARASSMENT
Third-party sexual harassment is a potentially huge financial and management problem
for every employer. As Title VII states, employers are liable for any unwelcome conduct of a
sexual nature that occurs within the work environment. This means no matter where your
employees are, they must not be subjected to crude comments, suggestions or
implications of a sexual nature, nor may they be touched inappropriately, forced into
committing sexual acts or be subjected to viewing sexually explicit objects, posters,
photos or material. If this happens, and one or more of your employees finds it
offensive and complains, you are responsible (Laabs, 1995).
The difficulty of these situations lies within the employer to customer relationship.
Although difficult, the employer still has the same legal obligations to remedy the
situation. In fact, there is already legal precedence for a server of a restaurant to sue
and win under sexual harassment laws because of a repeatedly sexually abusive
customer not being handled properly by supervisors (Laabs, 1995).

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SEXUAL FAVORITISM
The EEOC Guidelines: “Where employment opportunities or benefits are granted because of
an individual’s submission to the employer’s sexual advances or requests for sexual favors, the
employer may be held liable for unlawful sex discrimination against other persons who were
qualified for but denied that employment opportunity or benefit.” (Burns, 1995)
In other words, consensual sexual favoritism is not sexual discrimination and therefore
not sexual harassment. In addition, the explicit language of Tile VII of the Civil Rights
Act of 1964 states that ‘it shall be an unlawful employment practice for an employer to
discriminate against any individual . . . because of such individual’s . . . sex . . .”. (Burns,
1995). This section of the law requires that the plaintiff show that it was his or her own
sex, not someone else’s gender, that motivated the discrimination.
To reiterate, consensual sexual favoritism is not sex discrimination which means there
are no rights for a ‘passed over’ employee to sue under sexual harassment laws.
However, if the sexual favoritism was non consensual, then all aggrieved parties have
potential support for sexual discrimination and therefore a sexual harassment case.
Sexual favoritism, like nepotism and other examples of the adage that “it’s not what you
know but who you know”, may be unfair but is almost never illegal.
NEW AGE SEXUAL HARASSMENT
This type of sexual harassment is a slant on the ‘traditional’ type of sexual harassment.
As shown in the Michael Douglas/Demi Moore motion picture named Disclosure,
sexual harassment is not just a male on female injustice. In fact, the increase in the
number of sexual harassment cases in which men are the victims and women are the

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harassers has business scrambling to make sure that its managers and supervisors
understand that regardless of who the victim -- or the harasser -- may be, sexual
harassment is sexual harassment (Verespej, 1995). This is also true for homosexual
harassment/same-gender harassment. In fact, a proactive stance on homosexual rights
and homosexual discrimination would make corporate policies a step ahead of the laws
as well as showing a corporate understanding toward homosexuality and its apparent
prominence in the restaurant industry.
WOMEN HARASSING MEN
According to the EEOC, the overwhelming majority of the ‘new age’ complaints, which
represents 10% of all cases, are harassment of men by female supervisors. Mr. Stephen
Cooper, a St. Paul Lawyer, says “We forget that more than half the time there is no romantic
component to sexual harassment; that it is mostly an intentional power play by a man or woman
trying to assert authority, and now more women are in decision-making positions.” In
addition, he says, society is “starting to admit that women have sexual interests and urges
that we have always said men only have.” Therefore, rather than being the exception,
expect such cases to increase as women, who now hold 15% of managerial and
supervisory positions, obtain more positions of power. (Verespej, 1995)
SAME GENDER HARASSMENT
Homosexual discrimination exists in many forms. As in every sexual harassment and
sexual discrimination definition and/or example, the same should be considered for
homosexuals. In truth, as the courts begin to consider homosexuals as a protected
group, as they no doubt will, the employer will face the same issues of discrimination
and harassment for homosexuals.

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In a recent addition to California employment law, the First Appellate District Court
held that an employee may bring a common law cause of action for wrongful
termination for violation of public policy which prohibits discrimination on the basis of
sexual orientation (Brobeck et. al., 1995). Homosexuals are one step closer to being a
protected group for legal recognition. Sooner than later, all types of discrimination and
harassment will apply to homosexuals, which means the employer should proactively
institute homosexuals into their policies.
With the basis of sex discrimination and the interpretation of Title VII of the Civil Rights
Act of 1964 combined with the Civil Rights Act of 1991, quid pro quo and hostile
environment sexual harassment are extremely important aspects of every employer’s life.
And although the typical man boss to woman employee sexual harassment situation is the
most common type of sexual harassment case, there are many other complex issues to
be considered. Such as third party sexual harassment, sexual favoritism and new age sexual
harassment where women harass men and those of the same gender harass each other. It is
these involved issues that must be considered when applying them to a proactive
policy -- the balance of ignorance and zero tolerance being the goal.

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THE BALANCE
The Incentive to Create a Proactive Policy that is Enforced
Never has the awareness in the workplace been higher. Yet the lawsuits continue to
proliferate with no end in sight. This is because the employers are not the only ones
with a heightened awareness. Employees are more aware than ever of their rights, how
to pursue them, and most importantly, what a successful court resolution will yield.
And there are a lot more employees than employers
With wide exposure of lucrative rewards to litigants, plaintiff and defense attorneys
must be adept at weeding out the bona fide claims from the unmeritous -- those
brought with an eye toward the well publicized pot of gold and little or nothing more.
Make no mistake, this is complicated litigation, fraught with issues requiring subjective
interpretation and argument throughout, and fact sensitive not only as to the alleged
act(s), but likewise to the history of the litigants as well. (Comp-pro Seminars, 1995)
This means the litigation for the employer is not cheap!
The incentive of all incentives - money, money, and money (it also happens to be the
right thing to do).
Guidelines to a Proactive Policy
Such things as mandatory arbitration and mandatory mediation are ways to help
prevent litigation. However, the main goal is to prevent sexual harassment all together.
And to do this, employers must not only have a procedure by which employees can
complain of harassment but that procedure must lead to corrective action.

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Preventing sexual harassment is obviously preferable to taking remedial action once
harassment has occurred. However, when remedial action is required, the 1980 EEOC
guidelines call for “affirmatively raising the subject, expressing strong disapproval, developing
appropriate sanctions, informing employees of their rights to raise and how to raise the issue of
harassment under Title VII, and developing methods to sensitize all concerned.” The 1993
EEOC guidelines recommend “an explicit policy against harassment that is clearly and
regularly communicated to employees, explaining sanctions for harassment, developing methods
to sensitize all supervisory and non-supervisory employees on issues of harassment, and
informing employees of their right to raise, and the procedures for raising, the issue of
harassment under Title VII.” (Lee, 1995)
A PROACTIVE POLICY OUTLINE
• Adopt and publicize a policy that takes an unwavering stand against sexual
harassment while stating the illegality of sexual harassment (the law requires you to
have such a policy or address sexual harassment in some way).
• State the definition of sexual harassment under applicable state and federal law
while describing sexual harassment utilizing examples.
• State in your policy that you will not tolerate sexual harassment by insiders or
outsiders:
For example, “Sexual harassment of any Fog City Diner staff member by a coworker,
customer, manager, owner, or other non-Fog City Diner employee will not be tolerated. This
policy applies to conduct in the workplace, at company functions, and in all employment
relations, and protects employees at all levels and positions within the company regardless of

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gender or sexual orientation. Any individual found violating this policy can be subject to
disciplinary action up to and including termination, and possibly prosecution by the victim. We
also point out that in terms of sexual harassment, it does not mean it happens on the premises.
If a Fog City Diner employee or associate is traveling on business either in the United States or
abroad, the same policy applies.”
*Include all such information in the employee handbook in addition to employee
publications and educational seminars.
• Demonstrate that top management is committed to the policy. Have senior
managers attend sensitivity-training sessions and reiterate the company’s policies at
their staff meetings.
• Educate managers in the subtleties of the law so they can become the first line of
defense.
• Establish clear procedures and have an internal complaint process, such as an
anonymous hot line, available to the employees. Also state the legal remedies and
complaint process available to them under the EEOC and federal and state laws while
giving directions on how to contact the EEOC.
• Train the person(s) who will look into complaints to do a careful investigation and
conduct thorough but confidential interviews.
• Promptly investigate all claims and demonstrate that complaints will be examined
fairly and objectively (don’t blame the victim).

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• Establish a paper trail. Even if the allegations are not proven, keep a written report
of the investigation in a single secure location. A memo should explain why no formal
action was taken.
• Always take some corrective action to show that the complaint has been taken
seriously.
• Make sure the discipline is appropriate to the offense. Fire an employee only if the
allegations are serious and have been proven.
• Give the employees assurance that a complaint of sexual harassment will not be
subjected to retaliation.
• Finally, don’t let any worker get too much further than the front door before
handing them a copy of your policy and going over it (that goes for new employees,
contingent workers, temporary employees, and independent contractors).
* Employers should republish their sexual harassment policy and procedures from time to time
and save the documentation to prove that the policy was republished to its employees.

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CONCLUSION
The overriding lesson from sexual discrimination, and therefore sexual harassment
cases, is that having a policy against sexual harassment is of little benefit to an employer
unless the employer truly enforces the policy. The consequences of not having a policy
and enforcing it are dire under the Civil Rights Acts of 1964 and 1991. Those Acts make
sexual discrimination a federal offense while also making you liable for millions of
dollars in punitive and compensatory damages. This means that a company has to be
willing to take serious action up to and including termination of the harasser in an
appropriate case, even if the harasser is a VIP in the company. (Betts, 1995)
Do not forget that there are many types of sexual harassment. Such as third party sexual
harassment, sexual favoritism and new age sexual harassment where women harass men and
those of the same gender harass each other. This means the typical man boss to woman
employee sexual harassment situation is not the only type of sexual harassment dispute
covered by quid pro quo and hostile environment sexual harassment law.
While some Fortune 500 firms have well-trained personnel experienced in investigating
harassment complaints, other employers become unnerved and overreact when an
allegation, or slightest whiff of one, surfaces. The accused is forced out on the basis of
little, if any, evidence. Again, the balance of ignorance and zero tolerance is the goal.
(Kruger, 1995)
In an attempt to prevent harassment and protect themselves, some employers are
creating paranoia. By issuing extreme warnings and policies, companies generate a
climate of fear and distrust that undermines productivity, team-work and the
hospitality vibe the restaurant industry has tried so hard to create. And because

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handling a complaint is so tricky and potentially costly, employers have to be smart,
sensitive and swift in their response to protect themselves and their employees. One
last thought; remember to balance those hard policy and procedure materials with a serious and
loving value statement that underlies all your company stands for.

19. page A
REFERENCES
Betts, Rod. Prevention of Sexual Harassment Lawsuits: Don’t Look the Other Way
from the World Wide Web, November, 1995.
Brobeck, Phleger & Harrison. Labor and Internal Law Update from World Wide Web.
June, 1995 pages (5).
Burns, James A. Is Sexual Favoritism Sex Discrimination? from Employee Relations Law
Journal Volume 21 issue 1 Summer 1995 page 163 (5).
Comp-Pro Seminars, Inc. Litigating the Sexual Harassment Lawsuit, from Primenet on
the World Wide Web. November, 1995, page (4).
Godsey, Kristin Dunlap. Battle of the Sexes from Restaurant and Institutions. Volume
105 issue 6. March 1, 1995 page 134 (3).
Goll, G. E. Managing People in the Hospitality Industry. 1994
Goll, Gerald E. Class Notes from Managing People. Fall, 1995.
Kapner, Suzanne. Stance with a Focus on Bottom Line, from Nation’s Restaurant News.
May 8, 1995, page 1(2).
Kruger, Pamela. See No Evil from Working Woman. Volume 20 issue 6. June, 1995 page
32 (7).
Laabs, Jennifer J. What to do When Sexual Harassment Comes Calling from Personnel
Journal Volume 74 issue 7. July, 1995 page 42 (10).
Lee, Robert D. The Legal Evolution of Sexual Harassment from Public Administration
Review. July/August 1995 page 357 (8).
Rizzotti, Anthony D. The Law of Sexual Harassment from Prospects on World Wide Web.
May 15, 1995 pages (3).
Sherry, John E. H. Employer’s Liability for GMs’ Sexual Harassment from The Cornell
Hotel and Restaurant Administration Quarterly. August, 1995 page 16 (2).
Verespej, Michael A. New Age Sexual Harassment from Industry Weekly Volume 244
issue 10. May 15, 1995 page 64 (2).