Sexual harassment is pervasive in the restaurant industry, with studies showing that anywhere from 54% to 81% of women in the industry have experienced harassment. Regrettably, studies also show that most victims (58-72%) do not report their mistreatment. Don’t be one of the many who endures harassment in silence. Instead, get in touch with an experienced New York sexual harassment lawyer about the options you can take.
A sexual harassment case from Dutchess County reveals many of the stereotypical forms of harassment, from inappropriate comments to unwanted touching and “upskirt” videotaping. The case also illustrates how the standards of New York State law may help those who take action.
The workers were four women who worked as servers and bartenders at a pair of Dutchess County restaurant/bars. In addition to alleging illegal pay practices as part of the lawsuit, the workers also asserted violations of the New York State Human Rights Law.
The workers’ complaint listed the sorts of harassment and discrimination that are all too common in the restaurant industry. Allegedly, chefs at the restaurants verbally harassed the women “on an almost near daily basis.” This harassment included making “inappropriate sexual commentary” about the women’s bodies and quizzing them about their favorite sexual positions and whether or not they enjoyed giving fellatio. According to the complaint, the women also endured physical harassment from the chefs, who would grab them and other female servers.
One server, M.D., allegedly encountered harassment by a customer who used his phone to shoot video images up the server’s skirt. The server complained, but the employer merely told her “not to drag” the business into the matter and reprimanded her after she complained about the customer on social media, according to the complaint.
Once the servers sued, the employer asked the court to throw out M.D.’s hostile work environment claim on the basis that she provided “only two isolated and unrelated instances, which are insufficiently severe to establish a hostile work environment.”
The Employer Argued the Wrong Standard
Implicitly, the employer had argued that the harassment M.D. endured was not severe and occurred too infrequently to qualify as pervasive. As the trial court noted, however, the employer based its argument on an incorrect statement of the law. The employer’s argument essentially contended that M.D. had not provided the court with enough evidence to meet the “severe or pervasive” harassment standard. However, the “severe or pervasive” harassment standard reflects the hurdle that exists under federal law (Title VII), not state law. The NYSHRL’s standard used to mirror Title VII, but has not since 2019, when the state legislature amended the NYSHRL.
The NYSHRL, following that 2019 amendment, now only requires workers to allege that “they were subjected to inferior terms, conditions, or privileges of employment because of [their] membership in one or more protected categories.” The court explained that this post-amendment standard mirrors the New York City Human Rights Law, which requires only proof that “they have been treated less well at least in part because of [their] gender.”
The court also pointed out just how low a hurdle this was, stating that an employer’s motion to dismiss could succeed, post-amendment, “only when it raises a truly insubstantial case” of petty slights or trivial inconveniences. The court cited to a February case that noted that a worker “need not allege that she suffered an adverse employment action or that ‘discriminatory animus was the but-for cause or even the primary motivation of their alleged mistreatment.” That opinion also stated that “even a single comment that objectifies women . . . made in circumstances where that comment would, for example, signal views about the role of women in the workplace [can] be” the basis of a valid claim.
Just because sexual harassment is rampant in your industry or at your place of work does not mean you have to tolerate it. For knowledgeable answers about your legal options, get in touch with the New York City sexual harassment attorneys at Phillips & Associates PLLC. Our team has extensive experience helping clients across a wide array of workplaces, including the restaurant and hospitality industries. To learn more, please contact us online or call (866) 229-9441 to schedule a free and confidential consultation today.