United States: EEOC's Crosshairs Locked On Harassment Of Teens In Restaurant Industry

Seyfarth Synopsis: Over the past several years, the EEOC has maintained a litigation focus on protecting young workers in low wage jobs from sexual harassment. This has translated to intense scrutiny of teenagers working in the restaurant industry. According to the EEOC, these workers are particularly vulnerable to harassment and other forms of discrimination. Employers in any industry with young employees should pay particular attention to harassment issues, as the EEOC has demonstrated it is keeping a watchful eye on this particular demographic. Restaurant employers should be particularly on alert.

On September 12, 2022, during a Strategic Enforcement Plan session, the EEOC's Vice Chair, Jocelyn Samuels, expressed the agency's determination to reach young workers in the restaurant industry, including teenagers, who "aren't aware of their rights, and are particularly subject to harassment and other forms of discrimination at work." According to a national survey conducted by Social Science Research Solutions in January 2021, 71% of female restaurant workers have been harassed at least once during their time in the industry. And, in fact, more harassment charges are filed in the restaurant industry than in any other industry.¹

The EEOC's recent litigation efforts show that the agency has put its money where its mouth is to combat harassment against young employees in the restaurant industry. Just in the last five years, the EEOC has pursued cases in virtually every restaurant concept, and has brought suit against both big and small employers, from nationally-known chains to modest mom-and-pop locations. For instance:

• In May 2023, the EEOC filed suit against Culver's Restaurants in Minnesota, alleging that the restaurant subjected employees to a hostile work environment based on race, sex, sexual orientation, and disability. As part of the lawsuit, the EEOC claimed that the company exposed female employees, some as young as 14 years old, to sexual harassment, including unwanted sexual touching, jokes, and propositions. EEOC v. R & G Endeavors, Inc., Case Nos. 0:23-cv-01501-PJS-LIB and 0:23-cv-01506-ECT-JFD.
• In May 2023, the EEOC filed suit against Swami's Café and Honey's Bistro, a chain of restaurants in San Diego, California. The suit alleged that, beginning in 2019, nine restaurant locations allowed a class of young female employees, including some teenagers, to be subjected to sexual harassment by male supervisors and co-workers. The harassment allegedly included frequent and offensive sex-based remarks and advances, among other behavior, which the restaurant did not properly monitor. EEOC v. Swami's 101 LLC, et al., Case No. 3:23-cv-00902-LAB-NLS.
• In September 2022, the EEOC filed suit against two Chili's Grill & Bar restaurants, one in Benton, Arkansas, and one in Dallas, Texas. The suits alleged that the restaurants subjected female employees, including teens, to a sexually hostile work environment, which included several physical assaults, vulgar comments, and sexual remarks. EEOC v. Brinker Int'l Payroll Co. LP, et al., Case Nos. 4:22-cv-00820-KGB and 3:22-cv-02017-E.
• In March 2022, the EEOC filed suit against Chipotle Mexican Grill, alleging that the company subjected young female employees to ongoing sexual harassment. The complaint alleged that the restaurant failed to investigate and/or remediate internal complaints of harassment, and allowed an alleged male harasser to return to the workplace, where he angrily confronted those who had complained about the harassment. EEOC v. Chipotle Services, LLC and Chipotle Mexican Grill, Inc., Case No. 2:22-cv-00279.
• In June 2021, the EEOC sued Sonic Drive-In, alleging that three teen female carhops were subjected to a hostile work environment, when a manager made daily crude sexual comments and sexual propositions to them, and subjected them to unwelcome physical touching. The lawsuit alleged that even after the harassment was reported to management, no responsive or remedial actions were taken. EEOC v. SDI of Minola, Texas, LLC, et al., Case No. 6:21-cv-00226-JCB-KNM.
• In February 2020, the EEOC sued a Medford, Oregon restaurant, New China, alleging that the restaurant allowed its former manager to repeatedly sexually harass young female employees. The complaint further alleged that the restaurant terminated one worker after she reported the conduct, and created intolerable workplace conditions, forcing other workers to quit involuntarily. According to the lawsuit, even after the manager was arrested at work and booked for sexual abuse of the restaurant's minor employee, he was permitted to return to work. EEOC v. New China, Inc., Case No. 1:20-cv-00277-CL.
• In October 2019, the EEOC filed suit against Pei Wei Asian Diner, LLC, in Little Rock, Arkansas, alleging that the restaurant subjected a class of female teens and young adults to sexual harassment and a sexually hostile work environment. According to the EEOC, despite receiving notice that the general manager had allegedly harassed young female employees since 2016, the company allowed the manager's behavior to continue unchecked. EEOC v. Pei Wei Asian Diner LLC, Case No. 4:19-cv-00718-KGB.
• In March 2018, the EEOC filed suit against an owner and operator of 51 Arby's locations across Alabama, Georgia, Louisiana, Mississippi, and Florida. The lawsuit alleged that the company permitted a sexually hostile work environment based on ongoing sexually explicit comments and other alleged harassment by an older male team leader against three teenage female crew members. EEOC v. Beavers' Inc., d/b/a Arby's, Case No. 1:18-cv-00150-TFM-MU.

The list goes on, but the message is clear: if the EEOC learns of harassment of young employees at any hospitality employer, it will aggressively investigate and – when appropriate – litigate, claims of workplace harassment.

Implications for Employers

For restaurant employers who want to stay out of the EEOC's crosshairs, and maintain a healthy and functioning workforce, the best defense is a good offense. Proactive measures can not only assist with legal claims – they can often prevent claims from happening in the first place. It is important to establish and enforce a strong, state-of-the-art anti-harassment policy. Not all policies are created equal, and a review of work rules through the lens of recent legal changes and challenges is strongly advisable. Another best practice is to conduct regular workplace trainings to educate employees, including managers, on harassment prevention and what is off-limits. In addition, employers should take seriously, and promptly investigate, any internal complaints of harassment, and take swift and effective remedial measures when appropriate, to avoid repeated instances of harassment. Each of these steps were recently championed by the EEOC as effective ways to avoid harassment claims (read more here).

Another best practice involves keeping an eye on what administrative charges can tell an employer. Hospitality employers often have decentralized human resources and operations functions. EEOC charges can be received and processed by locations in the field without that information being escalated and evaluated at a bird's-eye view. Keeping track of charge trends and identifying potential vulnerabilities could allow an employer an opportunity to nip potential problem areas in the bud. These concerns, while serious, are not insurmountable. Knowing the issues and taking preventative steps can keep employers one step in front of a potentially perilous tangle with the EEOC.

Footnote

1. See, e.g., Harvard Business Review, Sexual Harassment Is Pervasive in the Restaurant Industry. Here's What Needs to Change, January 18, 2019, available at https://hbr.org/2018/01/sexual-harassment-is-pervasive-in-the-restaurant-industry-heres-what-needs-to-change

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