The Equal Opportunity Jerk is a Recipe for Disaster

Posted by: Gail Cecchettini Whaley, Esq. on Wednesday, March 6, 2019 at 9:00:00 am

Companies defending against claims of harassment or discrimination might sometimes use this general defense: “We know ___ is a jerk but he/she is a jerk to everyone—no particular group [fill in race, religion, gender, etc.] is being targeted.”

If this is the best defense your organization has, be careful! Not only is this a weak defense, but, in general, experience shows that the “equal opportunity jerk” can and will get your company in hot water.

A recent federal Equal Employment Opportunity Commission (EEOC) charge involving an “equal opportunity fondler” brings this point home. At this point, these are only allegations, but they demonstrate the potential for company liability. Moreover, any EEOC claim eats company time and money and usually hits workplace morale.

Male and Female Workers Harassed

The EEOC accused two restaurants in Carmel, California (owned by the same company) of permitting employees to sexually harass male and female kitchen staff.

According to the EEOC's lawsuit, a male line cook at “Restaurant A” suffered repeated groping of his private parts by the kitchen manager, cook, and chef. When he reported the conduct to the restaurant’s owners, they apparently dismissed the inappropriate touching by the kitchen manager and cook, claiming "they only play."

After the line cook reported that the chef grabbed his genitals, the chef became confrontational, yelling at the line cook, hitting him twice and aggressively scrutinizing and criticizing his plating of meals. To make matters worse, the restaurant owners allegedly sought to discipline the line cook for leaving the restaurant after he became upset by the chef's actions. The line cook quit due to the alleged unchecked and ongoing harassment and hostility.

In addition, the EEOC alleged that a female dishwasher employed at “Restaurant B” faced daily sexual comments and physical touching by the same kitchen manager who harassed the “Restaurant A” line cook. The alleged harassment included the manager sticking his tongue in her ear, sliding his hand up her shirt to grab her breast, and offering to pay her for sex. The dishwasher claimed that she informed another manager of the harassment, but the sexual conduct continued.

If such conduct is proven, it violates Title VII of the Civil Rights Act of 1964 which prohibits sexual harassment in the workplace, and the EEOC filed its lawsuit in U.S. District Court for the Northern District of California. The alleged conduct would also violate California’s fair employment laws.

Employers Must Take Reasonable Steps to Prevent Harassment

Ignoring this type of conduct is a recipe for disaster. It doesn’t matter at all that both men and women were groped at work by the same cast of characters. Here, we have a pattern of unwelcome sexual conduct.

When employers write off or ignore a seemingly isolated incident, it breaks down appropriate boundaries and sets a tone for future misconduct.

“Advising employees to 'just ignore' bad behavior and dismissing harassment as mere horseplay are red flags an organization needs to re-examine its workplace culture and anti-harassment policy," said EEOC San Francisco Regional Attorney Roberta Steele. "This bullet point from the EEOC's Select Task Force on Workplace Harassment checklists for employers bears repeating: 'take reports seriously.’”

EEOC San Jose Local Office Director Rosa Salazar added, "Employers must protect their workers from harassment and sexual abuse, no matter whether filed by a male or female employee. These workers notified their management, but their employer failed to take prompt, effective action as federal law requires it to do."

Training is a key component to increase awareness and create a more professional and respectful workforce. And, here in California, harassment prevention training is mandatory for all employers who have five or more employees.

Check out our harassment prevention training options to see which training is right for your company. We’re here to help you make sure your workplace is safe and respectful for everyone.

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