You can’t win an EEOC lawsuit, but you can prevent it
By David Cantu, chief revenue officer and co-founder of HotSchedules
In an Equal Employment Opportunity Commission lawsuit, your restaurant will lose even if you win in court. The real casualty of an EEOC lawsuit is your reputation. Founded or unfounded, the charges will cause potential customers, employees, and partners to question your values. To win an EEOC lawsuit, you must prevent it in the first place.
An independent federal agency, the EEOC upholds federal civil rights laws. When workers appear to suffer discrimination at work, the EEOC's legal team will represent them. The EEOC investigates 12 different forms of discrimination.
Of the 89,385 charges the EEOC reviewed in 2015, Retaliation, Race, Disability, and Sex discrimination were the most prevalent, and 28,000 charges, or 31 percent, involved harassment. That is alarming for restaurants, where carefree culture often toes the line between camaraderie and harassment.
To prevent your restaurant from suffering an EEOC lawsuit, take the following measures:
1.Write a discrimination policy
The key to preventing EEOC lawsuits is to document everything, starting with your Sexual Harassment and Discrimination Policy. The policy holds employees legally accountable for upholding the laws and values enshrined in federal civil rights statutes. It also explains what managers and staff should do in cases of alleged discrimination.
A standard policy details how managers should record EEOC incidents, take corrective actions, and follow up. Every employee should sign the discrimination policy during onboarding.
2. Make your non-discrimination policy visible
Post your discrimination policies somewhere every employee must see it. Your logbook, employee handbook, learning management system, and breakroom are good locations. Remember, guests could take away the wrong idea if they see a piece of paper titled “ANTI-DISCRIMINATION AND HARASSMENT POLICY.” Keep it in the back of the house.
3. Mandatory training
Training ensures that employees follow the protocols set forth in your discrimination policy. Courses should teach employees how to distinguish discrimination from typical restaurant shenanigans.
At minimum, training should cover:
- What employees should do if they experience or see discrimination in the workplace.
- How to report incidents.
- Step-by-step actions managers should take upon learning of an incident
Be ready to prove that employees have completed training. Whether you design your own courses or license them through an online learning management system, document completion.
4.Don't ask illegal interview questions
If we sat down to a mock interview, would you be able to pick out which questions are illegal? Probably not without practice and training.
Many managers don't realize that asking for the candidate's age, number of children, and disabilities during the hiring process can be considered discrimination. However, you can obtain the same information by reframing discriminatory questions. For example:
- Do you have any disabilities → Are you able to perform the following tasks…?
- How old are you? → Are you between the ages of 18 and 65?
- Do you have kids? → Do you have responsibilities that may prevent you from committing to your assigned work schedule?
5. Find the line between fun and harassment
In restaurant culture, jokes, pranks, and profanity are fun until they cross a line. Good managers know where that line is and guard it aggressively. Trust managers to confront employees who put the company at risk of an EEOC lawsuit. Shouting four-letter words is one thing, but jabs against someone's gender, sexual orientation, race, religion, or disability can trigger lawsuits.
6. Document, document, document
From recruiting and hiring to benefits administration, reviews, and termination, document everything. Be ready to back up your actions with evidence. Maintain time-stamped records of personnel issues, corrective actions, and disciplinary activity in a digital or physical logbook. By assuming that you will have to justify your actions in court, you will reduce the chance that you ever have to.
Now, talk to your lawyers
The internet is not the place to make your legal strategy. Use this article to understand the high-level issues, but please consult your legal counsel for further guidance. They know what documentation, policies, training, and systems you need to avoid an encounter with the EEOC. Just remember, you can't "win" an EEOC lawsuit, but you can prevent one.
This blog should not be taken as official legal advice.