Sous chef had no right to hire and fire, but he was supervisor under state antibias law
Thursday, April 2, 2020

Sous chef had no right to hire and fire, but he was supervisor under state antibias law

By Vicki Krueger, J.D.

The sous chef at the restaurant met the definition of a "supervisor," making the restaurant strictly liable for sexual harassment by employees managed by the sous chef.

As the sous chef managed the "back-of-the-house" staff in the restaurant kitchen and, by his own admission, he was responsible for making sure that the company rules were followed, a federal district court in Massachusetts found he "supervised" the plaintiffs who worked as dishwashers and prep cooks, entitling them to partial summary judgment on their sexual harassment claims (Romero v. McCormick & Schmick Restaurant Corp. dba McCormick & Schmick’s Seafood Restaurant, March 24, 2020, Talwani, J.).

Back-of-the-house management. The sous chef began working at the restaurant in December 2013. The Executive Chef managed the sous chefs under him and understood the sous chef’s role to include supervising the kitchen staff. The sous chef and the Executive Chef generally worked opposite hours, and the sous chef was in charge when the Executive Chef was not present. He had the authority to cut the kitchen staff’s hours, he coached back-of-the-house employees on how to prepare a plate and how to follow a recipe, and he expected kitchen staff to follow his instructions. He understood his role to be "a leader to the people that [he] worked with" and that he was responsible for "making sure that the rules of the company are followed."

Notice of the harassment. One of the prep cooks told the sous chef that a co-worker had touched her. After multiple employees raised allegations with the Human Resources department and General Manager, HR told the sous chef that he had the duty to stop the harassment. The HR director expressed concerns about the sous chef’s "lack of leadership" and counseled him "against taking any retaliatory action against any employee that he thought may have come forward with concerns."

Massachusetts law. The Massachusetts Commission Against Discrimination provides a list of factors that indicate supervisory authority, including directing activities, assigning work, controlling workflow, evaluating an employee’s workload, giving directions, assisting employees in assigning tasks, and monitoring and evaluating work performance. Massachusetts law, in Chapter 151B, requires no direct supervisory relationship between the harasser and the victim and extends liability for the employer’s agents.

Title VII cases distinguishable. Because of the differences between state and federal law, Massachusetts decisions are distinguishable from those decided under Title VII. Under Chapter 151B, to find an employer strictly liable for a supervisor’s sexually harassing conduct, the supervisor need not have the power to hire, fire, demote, promote, transfer, or discipline an employee, but must have "‘some modicum of authority,’ such as the authority to assign work, impose particularly exacting scrutiny, or a responsibility to protect other workers from sexual harassment."

Supervisory status. Here, the sous chef did not hire, fire, or schedule employees, or set their compensation; he was not the only one to train the kitchen staff. But as a sous chef, he was a member of the management team. He was responsible for overseeing the work of dishwashers and prep cooks, and he scrutinized the work of kitchen staff and gave them directions. When the Executive Chef was not present, he was in charge of the back-of the-house staff. The sous chef considered himself a supervisor, and the restaurant’s own HR office viewed him as having authority over the plaintiffs. Accordingly, he had a responsibility to protect other workers from coworker sexual harassment.

The employer argued that an employee is a supervisor only if he or she is employed by the employer to take tangible employment actions against the purported victims, such as hiring, firing, failing to promote, or reassignment. That argument, however, applies Title VII standards, not those under Chapter 151B.

Procedure. The employer’s procedural arguments also failed. The plaintiffs filed their motion after 6:00 p.m. on the last day for filing, but their minor tardiness did not prejudice the defendant, and addressing the sous chef’s supervisory status now does not "upend the logical order of these proceedings." While it was correct that if the jury rejects the plaintiffs’ claims that the sous chef himself engaged in sexual harassment it will not need to reach the question of whether he was a supervisor, by then the parties would already have had to present their evidence as to his supervisory status at trial.

The plaintiffs’ motion for partial summary judgment was granted, finding the sous chef was the plaintiffs’ supervisor within the meaning of Chapter 151B at the time of the events at issue.

The case is No. 1:18-cv-10324-IT.

Attorneys: Rachel J. Smit (Fair Work P.C.) for Marta Romero, Fabiana Santos and Gladys Fuentes. Allison B. Cherundolo (Morgan Brown & Joy, LLP) for McCormick & Schmick Restaurant Corp. d/b/a McCormick & Schmick's Seafood Restaurant.

Cases: CoverageLiability StateLawClaims Discrimination SexDiscrimination SexualHarassment MassachusettsNews

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