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I work in a restaurant. As a waitress, 6 months ago one of…

Customer Question
I work in a...

I work in a restaurant. As a waitress, 6 months ago one of the line cooks commented on the appearance of my breasts. I reported this to my employer and she gave this individual a verbal warning. He has not done this since. One week ago this same line cook was angry at me when I requested he change the appearance of a plate. He came around the line and threw a steak at me. There were no eye witnesses and I say it hit me in the face and he claims it never touched my body. Would this warrant a discrimination claim based on sex?

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Vermont

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Both of us work full time

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Yes, my employer suspended this individual for one week without pay, for inappropriate behavior and a written warning.

Submitted: 11 months ago.Category: Employment Law
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Answered in 3 minutes by:
9/19/2017
Employment Lawyer: Legal Eagle, Lawyer replied 11 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 14,244
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating so all that means is that you can count on me to help today. Generally, under 42 USC 2000e-2, it is unlawful for an employer to allow discrimination or harassment based on someone’s gender to occur in the workplace. Therefore, in your case you would have to try to draw the line between them throwing the steak at you and the comment about your breasts. it is likely that the employer would probably argue that the two situations were entirely different, but you would have to try to help convince the fact-finder that those two issues are the same. Accordingly, you may have a cause of action directly against the individual that through the state that you. You could have a cause of action for assault or battery. Assault occurs when one person causes another to have a fear of an imminent harmful touch. A battery occurs when a person actually engages in a harmful touching against another. So, whether the steak actually hit you is irrelevant as you may be able to bring a cause of action against that person themselves. My recommendation is that you may want to work with the human resources department of the restaurant if there is one available to explain to them what is going on and explain that you were looking to either be paid, be moved, or have the other person be terminated.

Also, although I provided an initial answer, it’s important that you are 100% satisfied. If you feel I have done so, please rate me 5 stars and let me know if you have any follow up questions. As a side note, you can also click here in the future to request me individually.

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Customer reply replied 11 months ago
When the incident occured, my employer did ask if he had done anything against me since the breast incident. He had not and I confirmed this. He is asking to return to work claiming the employer handled it appropriately with a written warning and suspension. Can they allow him to return to work if I told them I fear him?
Employment Lawyer: Legal Eagle, Lawyer replied 11 months ago

Technically, they can't allow him back to work even if you do for him, but this could lead to an additional level of proof that you are suffering from harassment on the basis of your gender in the workplace. So, my recommendation would be to explain that if they let him back to work under these circumstances, they could end up paying a lot more in the future if a court finsd against them.

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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