A Brewing Bikini Controversy Leads to Lawsuit

Perhaps riffing off the well-known bar where female employees wear scantily clad uniform, you know, rhymes with “Scooters,” one business owner started a company where women wearing bikinis acted as baristas.

They made and served lattes, Americanos, and cafe au lait at various stands in and around Washington State.

Last week, on September 16, the state Attorney General’s office filed a lawsuit against the sole manager and corporate officer for sexual harassment, retaliation, and wage theft.

What Kind of Sexual Harassment? What Did He Do?

The 12-page complaint alleges that over a 12-year period, the employer:

• required female employees to engage in sexual acts in order to be hired, keep their jobs, and/or be given better hours, shifts, or work locations;

• required female job applicants to strip naked in front of him during their job interviews;

• requested that female employees or applicants jump or bend over in front of him while naked;

• touched female employees without their permission, including kissing, hugging, and touching their private parts;

• made sexually charged and unwelcome comments, including about his penis, and about female employees’ appearance, size, clothing, and bodies;

• requested female applicants and employees to go to his house for job interviews or to pick up their wages, and then demanding sexual favors;

• instructed female employees to give customers (and him) nude and sexually provocative “shows” while working; and

• requested dates and sexual acts, including in exchange for job security, better shifts, or preferred work locations.

I am not making this up (I wish I was!). These allegations are all in the complaint.

If true, these allegations present all kinds of sexual harassment and sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII) as well as state law.

Hostile Work Environment Much?

Sexually charged comments or locker room-type banter about sex, a person’s sex life, a person’s body or attractiveness etc., made by executives, supervisor, or any employee to another may subject an employer to liability under federal law or state law if it rises to the level of sexual harassment by creating a hostile work environment.

To constitute a hostile work environment, first, the comments themselves must be based on a protected characteristic, such as sex.

If the allegations are true, check.

Second, Title VII requires that the comments are severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive.

If the allegations are true, check check.

Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the person harassed considers it to be offensive and abusive.

I mean…

If we’re talking sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, sexual innuendo; physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.

These must be based on the harassee’s gender, body parts, romantic life (or seeming lack thereof), etc.

While the complaint seems to include all of this and more, much of this conduct, if proven to be true, may also constitute “quid pro quo” sexual harassment a/k/a sexual favors.

We do not write about this type of harassment often because it’s less common. One might think people would know better by now than to engage in it.

Quid Pro What?

But what the heck is “quid pro quo”? Sounds like Latin…because it is.

Quid pro quo harassment occurs when a manager, supervisor, or executive (any person with the authority to hire or fire) offers or even hints to provide another employee with a promotion, raise, or even a job or other benefit if that employee will provide some kind of sexual favor.

This also occurs when a manager or other authority figure threatens to terminate or take some other adverse action against an employee if the employee does not acquiesce to performing some kind of sexual favor.

For example, if a manager or business owner requests dates and sexual acts, including in exchange for job security, better shifts, or preferred work locations, the would constitute quid pro quo harassment.

Requiring an employee to engage in sexual acts in exchange for keeping the job or to receive better hours, shifts, or work locations are other examples.

But There’s More…

According to the complaint, this conduct continued over a 12-year period. Twelve years!

Didn’t anyone complain?

Hard to complain if, as alleged, the employer fired employees who complained. Or cut their hours.

People have bills to pay and mouths to pay.

In any event, the complaint alleges that the owner engaged in “adverse action” against employees who rejected or opposed his unwelcome sexual conduct, including but not limited to, assigning fewer hours, assigning less favorable shifts, assigning less favorable work locations, termination, removing employees from the employer’s social media, which directed customers to where baristas were working which reduced their customer traffic, surveilling employees, and threatening employees.”

A claim for retaliation requires a plaintiff to demonstrate (1) engagement in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an adverse action was taken by the employer; and (3) there is some causal connection between the two, i.e., an adverse action following a statutorily protected activity.

These actions, the complaint reasons, would dissuade a reasonable person from engaging in protected activity.

Employer Takeaways

For now, the allegations are only that—allegations.

Lessons for employers, which I think most know, include:

• Have an employee handbook with an anti-harassment policy that includes specific misconduct and examples, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, etc.

• The workplace is not a meat market.

• Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for discipline.

• Maintain a top-down culture of respect, anti-retaliation, and intolerance of unlawful harassment.

• Consider your organizational culture. As I noted here, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture.

If this leader engaged in such conduct, there should be some hefty payouts in his future.

Most importantly, employers have a legal obligation to provide a safe and respectful work environment, not to grope and objectify their employees.