A Real World Example

For a view of how these principles can manifest themselves in the real world, let’s consider a fact scenario from an actual court case. In 1998 a federal appeals court upheld a $200,000 jury verdict (plus $38,000 in attorney fees and costs) against a franchise restaurant for harassment of a waitress by customers.

In that case, the plaintiff/waitress informed her manager that she did not like waiting on two regular male customers of the restaurant. The men had made sexually crude remarks to her, although the court record did not contain evidence that she told the manager the reason for her discomfort or that she ever relayed to the manager the substance of their remarks.

On one evening the men entered the restaurant and the wait staff, including younger males, argued over who would seat them because no one wanted to serve them. The manager ordered the plaintiff to wait on the men. While ordering, one of the men said she “smelled good” and grabbed her by the hair when she refused to tell him what perfume she was wearing. She informed the manager of the incident and asked if someone else could wait on the men. The manager denied the request, adding “You wait on them. You were hired to be a waitress. You waitress.” When she returned to the table, one of the men pulled her to him by the hair, grabbed her breast, and put his mouth on her breast. The plaintiff quit. She had worked in the restaurant only two months.

The plaintiff sued for sexual harassment. At trial, she testified that after this incident she was frightened to be near men, even her father and her husband, and that her condition prevented her from working. A psychologist testified to her post-traumatic stress disorder and depression. More than two years after the incident the plaintiff was employed as a home health care worker, but attended only to female patients.

The franchisor defended itself by essentially arguing that, while outrageous, the physically threatening conduct of the two customers was a one-time incident and was therefore not pervasive enough to create an abusive work environment. The court specifically rejected the argument that a single incident of physically threatening conduct can never be sufficient to create an abusive environment.

The root of the franchisor’s liability was the poor response of its manager. Prior to the sexual assault, the plaintiff had informed the manager of the hair-pulling incident and had also told him on three occasions that she did not wish to serve these customers. Receipt of this information triggered the manager’s obligation to respond adequately and promptly. Instead, the manager put the plaintiff in an abusive and potentially dangerous situation, although he had the means and the authority to avoid doing so by ordering a male waiter to serve them, waiting on them himself, or asking them to leave the restaurant.