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BIN
2009 • ISSUE 2
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BIN
Beverage Industry News
VOLUME 96, ISSUE NUMBER 31FOUNDED IN 1934
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SEXUAL HARASSMENT ISSUES INFOOD AND BEVERAGE ESTABLISHMENTS
Sexual harassment in the workplace is one type of harassment prohibited by the FairEmployment and Housing Act. The act prohibits sexual harassment not only of employees,but also of patrons. The harassing conduct need not occur in the workplace, but must occurin a work-related context. Nonverbal actions like inappropriate gestures toward an employ-ee or patron as well as verbal communications about a person’s sex organs (for example,telling a woman that her breasts look beautiful), can constitute unlawful harassment.A cause of action for sexual harassment in the workplace may be based on either of thefollowing two theories:• "Quid pro quo" sexual harassment: (sexual favors in exchange for employment or pro-motion), in which a term or benefit of employment is conditioned on submission tounwelcome sexual advances.• "Hostile work environment" sexual harassment: in which the harassment is sufficient-ly pervasive so as to alter the conditions of employment, creating an abusive work envi-ronment. An example would be patting a co-worker on his or her behind, which wouldbe considered an unwelcome sexual advance and, therefore, sexual harassment. Thesetwo theories may sometimes both be involved in the same case.A person bringing a hostile environment claim does not need to show loss of a tangiblejob benefit, but only that the harassing conduct was severe and pervasive enough to haveeffected the employee’s working conditions. An example of such conduct might be a malewaiter pervasively rubbing his body against a female cook while they work in a crampedkitchen.To protect yourself as an owner or operator of a bar or restaurant, I recommend establish-ing an anti-harassment policy and a complaint procedure, which should include:• A definition of sexual harassment;• Identifying who employees should contact if they are subjected to sexual harassment;• Ensuring that harassing supervisors can be bypassed in registering complaints;• Describing the disciplinary measures that the company may use in a harassment case;• Stating that the complaint will be kept confidential to the extent possible;• Stating that retaliation will not be tolerated; and• The policy’s written manual should be distributed to each employee on the employee'sfirst day of work, with receipt acknowledged by the employee.I will discuss issues of harassment by an employee toward a co-worker and the employer’sliability in such a case in two future articles.Alan Forester is an attorney, CPA and an expert witness in Alcoholic Beverage ControlLaw. For more information, please visit www.ABClawyer.com or call 877-LIQUOR-8 (877-547-8678).
I
Disclaimer: This article is not to be construed as legal advice. Please check with an attorney beforetaking action.
INDUSTRY INSIGHT
BY
ALAN FORESTER, CPA, ATTORNEY
WWW.ABCLAWYER.COM 1-877-LIQUOR-8
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