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6 Ways to Prevent an EEOC Lawsuit in Your Restaurant

If you’ve been in the restaurant world for a while, Equal Employment Opportunity Commission is probably a well-known acronym. But just in case, let’s quickly run through their purpose and priorities. The EEOC is an independent federal agency that promotes equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws […]

If you’ve been in the restaurant world for a while, Equal Employment Opportunity Commission is probably a well-known acronym. But just in case, let’s quickly run through their purpose and priorities.

The EEOC is an independent federal agency that promotes equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws and through education and technical assistance. The organization helps employees who might be facing discrimination in the workplace by representing them in cases where their civil rights have been violated or where there was a breach of contract.

How the EEOC Defines Discrimination

Discrimination comes in many forms. Federal law prohibits work-related discrimination in a number of areas, from recruiting and hiring practices, to job-related evaluations, and even employer-employee disciplinary actions. While sexual harassment is one of the most common discrimination claims, your restaurant could get hit with an EEOC lawsuit for depriving an employee of a career opportunity, improper training, or even disciplining your employee in the wrong way – even if you didn’t intend to do any of those things.

Here’s how the EEOC defines discrimination:

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    • Age

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    • Disability

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    • Equal Pay/Compensation

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    • Genetic Information

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    • Harassment

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    • National Origin

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    • Pregnancy

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    • Race/Color

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    • Religion

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    • Retaliation

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    • Sex

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    • Sexual Harassment

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Unfortunately, our industry has seen its fair share of EEOC lawsuits:

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    • In 2004, Abercrombie & Fitch settled for $50 million after they were found guilty of discriminatory hiring, recruiting and promotions practices when it came to women and minority employees.

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    • A renowned French chef in Manhattan was forced to pay $80,000 to settle claims with employees of Bangladeshi descent who claimed they were restricted to back-of-house positions and refused promotions that went to their Caucasian peers.

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These lawsuits not only cost a pretty penny, they can temporarily or even permanently hurt a restaurant’s reputation and ability to recruit and retain a talented workforce.

So what preventative measures can you put in place to ensure that your restaurant isn’t hit with an EEOC lawsuit? And how can you protect your restaurant in the event that an unwarranted claim is brought against you?

1. Document, Document, Document

You may have an employee who is a known troublemaker, but the likelihood that the phrase “yeah he was really bad and we fired him” holds up in court against a wrongful termination lawsuit is slim-to-none.

If you are asked to backup the reason for the termination – or to disprove any other kind of wrongdoing – there’s almost 100% chance that you’d need to provide sufficient documentation.

What is sufficient documentation? We’ll leave that up to your legal counsel to answer definitively, but at a minimum, it would be wise to keep a time-stamped record of personnel issues, corrective action or other disciplinary action in an online logbook. Consider your shift notes a locked down time capsule of information that can’t be edited after 24 hours – something that could hold up in court.

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At a minimum, it’s wise to keep a time-stamped record of personnel issues, corrective action or other disciplinary action in an online logbook. Consider your shift notes a locked down time capsule of information that can’t be edited after 24 hours – something that could hold up in court.

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2. Avoid Unlawful Preemployment Questions

EEOC lawsuits don’t just stem from your current employees, holes in your hiring process can expose you to EEO violations as well. It starts with the questions you ask in an interview. While “Tell me about yourself” seems rather innocent, that question could snowball into more personal questions that are considered unlawful by EEOC’s standards.

Questions like “Do you have any kids?” or “How old are you?” and “Do you have any disabilities” can be construed as loaded questions and could imply that an applicant is evaluated based on sex, economic status, or disability, rather than the actual job qualifications.

To avoid this kind of situation, train your managers to ask the right interview questions and make sure they know which interview questions to avoid and the impact it could have on the business.

3. Document Proper Sexual Harassment and Discrimination Policies

Is any restaurant immune to sexual harassment or discrimination? The short answer is “no.” There is always a chance an employee could say or do something that could be labeled discriminatory.

But there are ways to reduce your risk as an employer. This is where prevention, policy, education and the corrective action are crucial. And documentation, don’t forget documentation!

Do your employees know what to do if they experience or see sexual harassment or discrimination in the workplace? Do they know how to report it to a manager? Are managers aware of proper documentation and corrective action procedures?

The EEOC has established general guidelines that employers should include when establishing an anti-harassment policy. You can find an updated version of these on their website. You can also find an anti-harassment policy template on the website for The Society for Human Resource Management.

Usually, the Human Resources department in your restaurant, group, franchise or operation is responsible for creating a company policy prohibiting all forms of discrimination and documenting proper preventative and corrective action. Those documents are signed by all employees during the on-boarding process. Your restaurant’s EEO policies and procedures show that, as an employer, you’ve taken reasonable care to prevent or correct inappropriate conduct.

In the event that something does happen, managers should be trained to take corrective action, which could include documenting the incident, the corrective action or any other post-incident action taken by involved parties in an online logbook.

4. Deliver Voluntary or Mandatory Sexual Harassment and Discrimination Training

Some restaurants choose to create their own sexual harassment training series or ongoing classes and curriculum. Other restaurants will license content created through third-parties and the distribute it through their restaurant’s learning management system.

Whether it’s online or in-person, most restaurants consider this mandatory training. It’s important to check your state’s EEO laws, though. California, for instance, requires mandatory sexual harassment training for restaurants with 50 employees or more.

5. Post Corporate Policies Throughout Your Restaurant and in the Employee Handbook

Another way to reduce employer risk is to post your EEO policies in your restaurant or on your online logbook or e-Learning document library. Posting your company harassment and discrimination policies can improve awareness and is a reminder to employees that you take the issue seriously.

6. Offer Continuing Education Courses & Continuously Monitor

Compared to a lot of industries, restaurant culture tends to be looser. It doesn’t mean you take discrimination any less serious … it’s just that maybe using a derogatory four letter word is considered a compliment. And maybe it isn’t. It depends on your culture.

Managers should have an internal compass to spot the difference between culture and cause for concern. Ongoing conversations with employees is an important tool, as is ongoing training, especially when your State requires it.

Use e-learning systems to manage harassment training and keep your employees up to date on their curriculum. As anti-discrimination policies change, keep new documents in one central library and consistently test your employees to ensure they fully understand the ramifications and consequences of non-compliance.

“In one store, we had a shift supervisor who was stealing the deposits and hadn’t hit the bank in about a week. We didn’t get the money back, but we were allowed to present our time-stamped HotSchedules Logbook entries for store deposits. Those entries helped us win the case.”

– Steve Bradshaw, District Manager, CenterTwist, Inc.

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