Court Revives Waiter’s Hostile Workplace Claim

(CN) - The 7th Circuit reinstated a Chicago waiter's claim that his former supervisor's sexual advances, including grabbing his penis through his pocket, created a hostile work environment.

Paul Turner was fired from The Saloon Steakhouse in 2004 for leaving the restaurant during his shift. He claimed his firing was in retaliation for complaining about his supervisor's sexual advances and the steakhouse's failure to accommodate his psoriasis.

Turner said his supervisor, Denise "Dixie" Lake, was upset when he ended their nine-month sexual relationship.

He said she retaliated by changing his table assignments, writing him up on bogus disciplinary charges and sexually harassing him.

The district court granted summary judgment to the restaurant on all claims.

The Chicago-based appellate panel affirmed dismissal of everything but the sexual harassment claim, saying the allegations supported a claim for hostile work environment.

"Turner has identified at least five instances of explicit sexual harassment, three of which were aggressively physical," Judge Diane Sykes wrote.

In one instance, Turner was wiping off champagne that a customer had spilled on his pants when Lake allegedly put her hand in his pocket, grabbed his penis and said, "You sure are soaked."

He claimed she also asked him to kiss her, grabbed his butt, and pressed her chest against him and asked, "Don't you miss me?"

The district court ruled that most of Lake's alleged acts of sexual harassment were time-barred under Title VII's 300-day statute of limitations.

But the 7th Circuit said the lower court "should have asked whether any of Lake's alleged acts of sexual harassment occurred within the statutory time period," according to Supreme Court precedent.

Lake's alleged "Do you miss me?" comment indisputably occurred in August 2004, within 300 days, the court said.

"As such, the court should have analyzed whether all of Lake's conduct, taken as a whole, created an actionable hostile work environment," Sykes wrote.

It reversed and remanded on the sexual harassment claim, but upheld dismissal of Turner's remaining claims for disability discrimination and retaliation, Title VII retaliation, and unpaid overtime.

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