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Affair at Chili's Grill Sizzles - Restaurant Almost Gets Burned

A recent decision by a federal appeals court should make employers, especially within the hospitality industry, take a look at their approach to office romances. Over the years, some courts have been hesitant to hold an employer liable for sexual discrimination when the harassment at issue is predicated solely upon an acrimonious breakup of an office romance. But this case illustrates a shift in this philosophy, recognizing that the focus in a harassment claim must be on the conduct at issue and that the motivating factor behind the harassment is irrelevant. Forrest v. Brinker Int'l Payroll Co., d/b/a Chili's Grill and Bar.

Office Romance Was Tumultuous

Allison Forrest, a server and bartender, began dating Mike Vashaw, a line cook, shortly after she began working for Chili's in 2003. Their relationship proved to be volatile, with arguments often spilling over into the workplace. For instance, during one breakup, Vashaw allegedly instigated an incident whereby Forrest was accosted by four women in the Chili's parking lot. Forrest reported the incident to the general manager, Claude Hadjaissa, who took corrective measures. Still, Forrest and Vashaw remained intimately involved until the relationship finally disintegrated in March of 2005 when Forrest began dating another man.

Within a month of their bitter breakup, Forrest lodged three separate complaints with Chili's concerning Vashaw's inappropriate behavior, alleging that Vashaw called her derogatory names (such as wh**e and bi**h), refused to handle her food orders, talked about her to other employees, squirted her with hot water, and told her that she was fat and needed to go to the gym. Chili's investigated each complaint and took remedial measures.

The first investigation resulted in an oral warning to Vashaw to "stop, and behave as a professional" or "circumstances will take place." The second inquiry resulted in a final written warning, directing Vashaw to "stop all negative confrontations with other employees," instructing him that he must correct the problem "immediately; there will be no other warnings on this matter," and informing him that failure to comply would result in "immediate termination." Vashaw was terminated during the third investigation after he admitted that he told Forrest that she was fat and needed to go to the gym.

Blaming the Company

Shortly after terminating her consensual office romance with Vashaw, Ms. Forrest sued Chili's in federal court, alleging that the restaurant exposed her to a hostile work environment created by the sexually harassing behavior of her ex-boyfriend. The court dismissed the claims, finding that Mr. Vashaw's actions did not constitute sexual harassment because they were not "based upon [Forrest's] sex."

To prove a claim of hostile work environment sexual harassment, an employee must demonstrate that the harassment was based upon sex. Many courts have found that a claim for sexual discrimination cannot be predicated upon behavior ultimately motivated by the breakup of an office romance.

A Shift in Philosophy

But on appeal, the U.S. Court of Appeals for the First Circuit, disagreed with the court's reasoning. Recognizing that the motivating factor is irrelevant, the First Circuit noted that "whether a harasser picks his or her targets because of a prior intimate relationship, desire for a future intimate relationship, or any other factor that draws the harasser's attention should not be the focus of the Title VII analysis." The Court further reasoned that, "presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim's sex is inextricably linked to the harasser's decision to harass."

Still, the Appellate Court affirmed the dismissal of the claims against Chili's because Forrest did not establish that Chili's failed to take "prompt and appropriate action" in response to her complaints. In order to establish employer liability in a hostile work environment case stemming from a co-workers' harassment, an employee must demonstrate that the employer "knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate action."

Chili's was smart, and ultimately insulated itself from liability by educating its employees concerning its policy prohibiting sexual harassment; training supervisors to take disciplinary action against offenders; investigating Forrest's complaints; and taking prompt remedial action against Vashaw three times, ultimately terminating him – actions other prudent hospitality employers will want to emulate.

Cooling Off Fiery Problems

This case illustrates that employers can be held liable in a hostile work environment lawsuit even when the sole motivating factor behind the harassment is the dissolution of an office romance. While all employers face this problem daily, some hospitality employers, such as hotels, can be uniquely troubled by office romances due to their unique workplaces. The long hours, confined work space, fast pace, availability of beds, and other environmental factors can help foster such relationships. But of course it doesn't have to be that way. Our advice: evaluate your approach to office romances and take positive steps to insulate your company from the liability that can arise from such relationships.

Some steps that you should consider include:

Make sure your harassment policy is up to date and distributed to all employees upon hire. Include an acknowledgment form that is signed by the employees and kept in their file.
Consider discouraging dating between co-workers, and forbid it between supervisors and subordinates – at least those with a direct reporting relationship.
Consider using "love contracts" as a mechanism for documenting the disclosures and acknowledgments from the employees involved in the workplace romance, as soon as an affair comes to your attention.
Protecting your company from the liability that can arise from office romances is a uniquely challenging task in the hospitality industry but it's as important today as ever.

Source: Fisher and Phillips link