Lawyers Explain What The Restaurant Industry Needs To Do To Protect Women

And all of its employees, for that matter.
Chef John Besh stepped down from his restaurant group after 25 former and current employees complained of sexual harassment at the company.
Mireya Acierto via Getty Images
Chef John Besh stepped down from his restaurant group after 25 former and current employees complained of sexual harassment at the company.

In the wake of sexual harassment allegations facing celebrity chef John Besh and his restaurant group, there’s now a spotlight on the restaurant industry’s toxic kitchen culture.

As it was first reported by the Times-Picayune, 25 current and former employees came forward with sexual harassment allegations against Besh and some of his employees. The Besh Group, which employs around 1,200 people, did not have a head of human resources until Oct. 11, just a few days before the allegations became public.

This is problematic because, according to a 2016 report from the Restaurant Opportunities Center United, 37 percent of sexual harassment complaints stem from the restaurant industry.

And though sexual harassment happens to both men and women, Besh’s case in particular involved men sexually harassing women. It’s no secret that women have experienced sexism in restaurant kitchens for decades, so how does the industry help to prevent this particular type of sexual harassment from occurring?

HuffPost spoke with three lawyers to get a better idea of why kitchens have such a toxic culture, how restaurant employees can report harassment, and why it’s up to management to change a company’s culture.

Long-standing traditions contribute to harmful culture at restaurants.

Steven Sidman, an Atlanta-based attorney at Carlton Fields who represents Michelin-starred chefs and restaurateurs, thinks the toxicity of restaurant culture stems from old practices that are still prevalent in Western commercial kitchen today.

“There’s kind of a social perception that [harassment of women in kitchens] is somehow more tolerable or more easily tolerated in the restaurant industry today due to traditions or some cultural aspect of it,” he told HuffPost. “The fact is that it should not be the case.”

“There is a long-standing tradition of sort of a quasi-militaristic brigade system, ranks of seniority, and it has been almost exclusively populated and run by men for decades ― and I would say even centuries.”

He added, “I think that recently you’ve seen this kind of fetishization of kitchen culture that has come along with this explosion of media attention. While that level of attention can be a force for good and for social change for the better, it’s also had somewhat of a negative cultural [effect] as well.”

Restaurant workers don’t always have HR people to turn to.

Restaurants aren’t required to have a human resources department, but they are legally required to make sure their employees are not subjected to harassment or discrimination, according to Liz S. Washko, an attorney at Ogletree Deakins’ Nashville office. Often times this responsibility falls on the shoulders of managers, supervisors, and other high-level management.

“It’s more of a best practice to make sure that you’re complying with the law and to provide employees with a resource they can talk to, ask questions of, or raise complaints,” she said.

Of course, that becomes a problem if, like the alleged harassment in the Besh case, senior management was behind the harassment. If that occurs, Wasko suggests turning to the Equal Opportunity Employment Commission (EEOC), a federal agency tasked with enforcing federal laws regarding discrimination and harassment.

“That’s the best case, that a number of employees make complaints to the EEOC. Quite frankly, that’s a way to start the legal claim,” she said. “It’s not usually a way to resolve the issue so that everyone can keep working together. At that point an employee has concluded that things aren’t going to work out or either they’ve left the company or they’re staying, but they don’t feel they’re gonna get the results they need internally, so they go to the EEOC.”

Washko said there are also state agencies ― usually called a human rights agency or human rights commission ― that serve a similar purpose to the EEOC, and to whom restaurant workers can report problems. For smaller restaurants that don’t have the money to put toward a full-time HR representative, she suggests businesses get resources (such as training materials and sample policy examples) from the National Restaurant Association.

Allison Kahn, a West Palm Beach-based attorney at Carlton Fields, also suggested ideas for companies that don’t have a full-time HR person.

“Consider hiring a lawyer or third-party HR company that can provide EEO policies, reporting procedures, and employee acknowledgements of those procedures,” Kahn said.Companies can also consider establishing a hotline for complaints. Proactive defense is the best defense and having these policies shows that your company is invested and cares for its employees.”

There’s a lot to lose if companies don’t deal with harassment.

“Without a presence of HR, there is likely no sexual harassment training, no EEO policies, and no notice to employees to report mistreatment and to whom,” Kahn said. “If a company cannot show it provided this information to employees, the company loses a key affirmative defense for some harassment cases (the Faragher Ellerth affirmative defense) because employees are then not required to report harassment and give the company an opportunity to remedy it.”

For restaurants run by celebrity chefs, Kahn added that the chefs themselves could be hit with criminal charges or sued for battery if harassment continues. She explained that there are also a lot of intangible costs if companies let harassers make other employee’s employment conditions unacceptable.

“Look at the Weinstein company,” Kahn explained. “You can’t just keep giving a pass in terms of letting people make other employees employment conditions unacceptable,” she said. “You [can] have bad press and then maybe people don’t want to work with you because the restaurant gets a reputation as being a bad place to work. It could affect your relationship with vendors.”

As Sidman added, “No matter what the perception is of how things operate with celebrity chefs or established chef restaurateurs, they’re not inoculated against compliance with the law or for that matter, just treating people with basic human dignity. It’s always been the case, but now there is an enormous amount of attention being turned to these issues.”

It’s up to management to enforce HR policies and create change.

″[Restaurants] should always have a written policy that prohibits discrimination, harassment, retaliation and makes it clear the company prohibits this conduct,” Washko said. “That policy should be accessible to all employees, every employee should have a copy of it and it should be periodically updated.”

In addition to a written policy, she explained said that it’s important to inform and train managers and supervisors on what they personally can and can’t do and how they should handle complaints if an employee comes to them.

“A lot of issues arise because a manager observed what was going on and didn’t take appropriate action,” Washko said. “That’s problematic.”

She added that companies must take all complaints seriously, investigate the matter and take corrective action when it’s appropriate. It all boils down to enforcing policy.

“You have to mean it. You have to enforce it,” Kahn said. “Management, especially, has to set the tone for the culture. There can’t be excuses for this type of behavior. It affects moral, it affects credibility, it affects productivity and it’s illegal.”

And if management won’t enforce policies, it’s important that employees are informed and know how to protect themselves if restaurants won’t do it for them.

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