Working Together

This post is part of a series of articles previewing the unique types of information and guidance contained in the Pullman Comley Hospitality Team’s “Connecticut Restaurant Guidebook 2023 Edition.” Available to members of the Connecticut Restaurant Association, this publication is essential reading for anyone who owns or operates a restaurant. Today’s posting incorporates content from the Guidebook’s section on sexual harassment prevention. Follow Pullman & Comley’s Instagram page as we count down to the release of the Connecticut Restaurant Guidebook 2023 Edition.

As most employers know, federal and state law prohibit sexual harassment in the workplace. On one level, the definition of sexual harassment is clear: Sexual harassment is defined as unwelcome sexual conduct that unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment.  Under many circumstances, sexual harassment is easy to identify: The lecherous boss demanding sexual favors in exchange for a proposal; the unwanted grope—even my kids remember the cautionary tale explored in the classic Simpson’s episode “Homer Badman.”

But what about scenarios where there is no job promotion-for-sexual favors offer, or a blatant leer or grope? What about scenarios where the unwanted and unwelcome conduct does not, on its face, rise to the level of sexual harassment? For instance, a single inappropriate joke, or a bawdy recounting of last weekend’s romantic conquests? In order to protect themselves, employers must learn how to identify how certain types of conduct can create hostile work environment (HWE) liability.

If left unchecked and allowed to repeat itself, inappropriate behavior can eventually create a HWE. In order for inappropriate conduct to create HWE liability, that conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Generally, a pattern of offensive conduct is needed to prove a hostile environment. However, an unusually severe single incident of harassment may be sufficient to constitute a violation. Thus, if a single incident is more severe, the employee has less need to show a series of repetitive incidents.

Courts consider the following factors in determining whether a hostile environment exists:

• Whether the conduct is verbal or physical or both;
• How frequently the conduct is repeated;
• Whether the conduct is hostile and patently offensive;
• Whether the alleged harasser is a co-worker or a supervisor;
• Whether others joined in perpetrating the harassment;
• Whether the harassment is directed at more than one individual.

So how do employers prevent hostile work environment liability? Properly trained supervisors are critical—especially in the hospitality world. All managers must embrace the “see/hear something, say something” ethos. If a manager tolerates inappropriate behavior—lewd comments, sexual jokes, inappropriate text messages—then he or she is part of the problem. Ultimately, hostile work environment claims are best prevented by creating a positive, respective workplace. And no one can do more to help—or hurt—a company’s culture than its supervisors.

TLDR: Properly trained supervisors are critical to preventing hostile work environments.

Continue checking Pullman and Comley’s Instagram for the next 2023 Restaurant Guidebook preview, and for more in-depth analysis, follow the Working Together blog. See you at the 2023 CRAzies!