Besh and Weinstein: Explosive Accusations that Echo the Tales of Millions of Employees Across the Country
October 25th, 2017 by David Minces
Over the weekend, famed New Orleans chef John Besh alleged harassment of employees was chronicled by the Times-Picayune. The allegations against Besh Restaurant Group, which employs thousands and spans across numerous restaurants throughout the country, came down just after a flood of allegations against former Weinstein Company executive, Harvey Weinstein. Social media posts, articles, and television appearances regarding the Besh accusations pointed to a systemic culture of sexual harassment in the restaurant industry. Outlets relied on close quarters, a fast-paced environment, and youthful staff as explanations for the prevalence of sexual harassment in the business. Those following the stories must have felt deja-vu, as just a few weeks ago the same excuses were used to explain Hollywood’s abundant and hidden harassment.
Saying that the restaurant and entertainment industries have disproportionate problems with sexual harassment is not wrong. In fact, the Restaurant Opportunities Center United determined that 37% of all EEOC Charges filed for sexual harassment stem from the restaurant industry.
A common form of sexual harassment in the restaurant and entertainment industries is quid pro quo harassment. Quid pro quo harassment is when an employee suffers adverse employment actions because of their “refusal to submit to a supervisor’s sexual demands.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). The obvious explanation for elevated rates of quid pro quo sexual harassment in these industries is that there is more at stake and those at the top, or in management positions have leverage over those who work below them or depend on them for opportunities. Additionally, because of the communal nature of the restaurant and entertainment industries, blowing the whistle on one bad actor can have a domino effect and burn bridges with future employers that run in the same circle.
63% of EEOC Charges are filed by employees of offices, retail establishments, and other industries, despite the lack of news covering the problems in these industries, it is no secret that sexual harassment is present among almost every employment industry. Other fields with elevated rates of reported harassment include: STEM careers, agriculture and advertising.
What qualifies as sexual harassment?
While the Weinstein and Besh incidents contain very graphic depictions of forced sexual acts and various instances of unwanted touching, that is not all that qualifies as sexual harassment in the workplace. According to the EEOC, unlawful harassment occurs when the conduct creates “a work environment that would be intimidating, hostile, or offensive to reasonable people.” This means it is more than an occasional joke or isolated and non-severe incident. Behavior that gives rise to harassment in the eyes of the law “may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.”
Sexual harassment specifically is defined by the EEOC as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” The conduct does not have to be victim-specific, comments about men or women in general can also constitute sexual harassment. Sexual harassment is not limited to different-sex interactions. A victim can be harassed by someone of the same sex and still pursue a sexual harassment claim. You do not need to be fired, demoted or suffer economic harm to pursue hostile work environment claims against a harassing employer.
What is the average person to do about it?
Obviously, not every case of sexual harassment has power players like Weinstein and Besh. That does not mean ordinary employers can get away with their actions.
Making an internal complaint is typically the first step. If your employer has a policy prohibiting harassment and providing steps to report harassment, follow these steps. Failure to take advantage of your employer’s policy provides your employer with a defense.
Filing a Charge of discrimination with the Equal Employment Opportunity Commission is typically the second step, but agency investigations can take 6-24 months on average as the EEOC’s offices are typically backed-up with complaints of discrimination of all varieties. Not to mention, some people, like Besh and Weinstein’s victims, fear losing their jobs or being blackballed in tight-knit industries. Despite the hurdles, reporting harassment is a necessary remedy to cure the spreading evil. It is also important to take action quickly as many states require a Charge to be filed within 180 days of the harassment. Certain states, like Texas, allow up to 300 days for a Charge to be filed.
Filing a lawsuit is usually the last step to can punish bad actors for their unlawful and immoral behavior after an EEOC investigation. A lawsuit can award compensatory damages to victims, which can include medical expenses, lost wages if they were demoted or terminated, and compensation for emotional harm. If the harassment was “especially malicious or reckless”, punitive damages may also be awarded. The range for compensatory and punitive damages available is between $50,000 and $300,000, depending on the size of the employer.
How can we change this?
The allegations against Weinstein and Besh are disturbing and it is likely that we will not know the extent of their conduct or the repercussions for some time. One thing we do know at this time is that sexual assault and harassment continues and not just in the restaurant and entertainment industries. The courage of victims to speak up against harassment in the workplace, despite what may be at stake, is the driving force to ending sexual harassment. Speaking to the right person can make all the difference. If you have experienced sexual harassment in the workplace, or if you are a business looking to be proactive in preventing harassment, Minces PLLC can help.
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