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It’s a recipe for disaster.

You run a thriving restaurant business, filled on any given business day with a loyal core of patrons who work in the surrounding neighborhood. They spend freely at the bar after work, frequently entertain customers with business meals, and their companies use your banquet or catering services. Their business helps to keep you in business.

So what do you do when you receive a complaint from one of youremployees---a bartender or a member of the waitstaff---that one of your best customers is sexually harassing him or her? What is the cost to your business if you speak to your regular customers about their behavior? And what is the cost if you don’t?

 

Good Customer, Bad Behavior

Most employers know that they may be liable for sexual harassment committed by a supervisor or a coworker. In fact, you likely have policies prohibiting harassment and procedures for taking complaints, conducting investigations, and disciplining employees when necessary. But what do you do when the boorish behavior is coming from a person who is paying you and not the other way around?

Restaurateurs should be aware that employers can be liable for sexual harassment committed by customers, when they knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action.

Take, for example, a sexual harassment case brought by a former bartender against the owner of the bar in which she worked, based primarily on the conduct of certain customers. The bartender alleged that three regular customers who were known for their obnoxious behavior began to target her with vulgar comments and sexual advances. Although management initially prohibited the patrons from sitting at or near her bar, as time went by, the patrons resumed their old habits. As the patrons became more flagrant in flaunting the rules, the bartender alleged that management became less vigilant in enforcing them, permitting the patrons to sit at her bar as long as they did not make offensive comments to her. The bartender alleged that at times she was reduced to waiting in the kitchen until the patrons left the bar voluntarily, during which time she lost tips that she otherwise would have earned.

In deciding that the bartender could proceed with her lawsuit against the bar, the court noted that management’s failure to eliminate contact between the patrons and the bartender allowed their harassment to continue, which suggested that the corrective measures taken by the bar were ineffective.

Corrective Action

What can you do to avoid a similar fate? Here are some suggestions:

·       Distribute to all employees a clear, user-friendly, written antiharassment and antidiscrimination policy that explicitly applies to nonemployees, including customers.

Your policy should inform employees about how to report complaints, including about customers, and permit reports to be made to several different supervisors. At least one complaint taker should be outside the direct chain of command. And you should train employees about how to make complaints.

·       Train supervisors about how to enforce the policy, including how to handle a complaint, investigate effectively, and take appropriate measures in response, whether it is speaking to the customer, reassigning the table to another employee, or, when necessary, asking the customer to leave.

·       Do not penalize employees who complain about harassment or discrimination by instituting adverse corrective measures. For example, no employee should have to forego potential tips by not working while the offending patron is on the premises.

·       Follow up to ensure that any measures you have put in place are observed by the patrons and speak with the employee to confirm that any offensive behavior has stopped.

There is no foolproof way to prevent all inappropriate behavior and the lawsuits that may follow. But the preventive measures outlined above may help you limit such claims and the potential liability and costs.

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