At the close of discovery, the restaurant moved for summary judgment. Among other things, IHOP argued that the harassment was not sufficiently severe and pervasive to support a claim of hostile work environment sexual harassment. IHOP also argued that even if the harassment were severe and pervasive, it had taken prompt remedial action when it learned of the harassment.
The Court disagreed and denied the motion for summary judgment. The Court ruled that:
Although the frequency of the conduct was only twice, the severity of the conduct is far greater. The conduct in this case was physically threatening and humiliating, unlike the myriad of cases that involve “brushing” or “touching.” Grabbing the crotch area of either sex certainly conveys a message that extends beyond workplace crudity, which, in large part under the case law, requires one to ignore.
The Court further ruled that a fact issue existed as to whether the restaurant exercised reasonable care and corrected the sexually harassing behavior in a timely manner, thus avoiding vicarious liability. Because the Court denied summary judgment, the employee could have presented his case to a jury. See court's decision here.
This case highlights a number of lessons for employers. Employers must have an anti-harassment policy in place that allows employees to report instances of harassment. Next, employers must ensure that all employees are aware of the policy. Also, management must know how to respond to allegations of harassment and investigations must be well documented.
As a side note, a couple of years ago the EEOC reported that restaurants were the single largest source of sexual harassment claims. I am not surprised.
Any employee who feels that he/she is being harassed should be familiar with the company policy and know who to contact to stop the harassment. Employees should understand that what they may perceive to be sexual harassment, may not be sexual harassment in the eyes of a court. To be clear on these issues an employee should consult with qualified labor and employment counsel.
If you have any questions about harassment or other employment law issues, give me a call at (813) 413-2402. Bradford & Bradford's practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.