Overview and Best Practices
Workplace harassment is a significant problem in settings across the United States. The recent accounts of harassment spanning from Hollywood to Washington, D.C. have caused businesses to reexamine their own policies against workplace harassment to prevent this type of conduct from occurring. Lodging properties should do the same.
Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to allow an employee to be subjected to discrimination, including harassment. The Equal Employment Opportunity Commission (EEOC) prosecutes claims of discrimination by issuing a “charge,” and is then responsible for investigating the matter. The EEOC has the option of either taking action directly against the employer on the victim’s behalf or supplying the victim with a “right to sue” letter. This letter informs the victim of the victim’s right to independently file a civil lawsuit seeking recovery for damages such as lost wages and benefits (back pay), future wages and benefits (front pay), emotional distress damages (e.g., anxiety and humiliation) and punitive damages (meant to punish the employer for egregious conduct).
What is Workplace Harassment?
Workplace harassment includes much more than sexual advances. While such behavior can be the clearest forms of harassment, workplace harassment can also include the following activities:
- Verbal harassment (derogatory comments, slurs, and jokes)
- Physical harassment (touching, assault or any other type of unwanted advance)
- Visual harassment (displaying derogatory images or making intimidating gestures)
- Verbal commentary about an individual’s body, or suggestive or obscene notes
- Bullying or intimidation involving any of the above actions
In certain circumstances, hoteliers can be held liable for acts of workplace harassment committed by their employees, especially if the hotel’s management knew or should have known of the conduct and failed to take immediate and appropriate corrective action.
Additionally, an employer could be held liable for failing to adequately protect employees from external bad actors, including hotel guests. For example, if a hotel manager were to insist that a hotel employee must continue to assist a customer who continually harassed her likely leaves the hotel vulnerable to a successful claim of workplace harassment. Hotels have a duty to take reasonable precautions to protect employees from harassment by guests, and you will want to visit with your specific hotel brand to determine what types of policies they require for dealing with problematic guests.
Minimizing an Employer’s Risk
What can hoteliers do to minimize lawsuits for workplace harassment? The law provides an affirmative defense for employers against claims of workplace harassment that could greatly reduce the amount of damages recoverable, or even forbid recovery entirely. This defense requires the hotel to show that:
The hotel exercised reasonable care to prevent or correct the inappropriate conduct; andThe alleged victim of harassment unreasonably failed to take advantage of the hotel’s preventive or corrective action.
Item number one above is particularly crucial for an employer to focus on. Employers must take affirmative actions to prevent harassment from occurring, properly and thoroughly investigate allegations of harassment, and take corrective and protective measures if harassment has occurred.
Establishing Policies and Procedures
It is extremely important for hotel operators to have a written policy prohibiting all forms of discrimination (this also helps show that reasonable care was exercised to prevent any workplace harassment). The policy should be posted where other employee notices are posted, as well as contained in the employee handbook that employees sign at their time of hire. A well-developed workplace harassment policy includes various items, such as:
- A description of the kind of conduct that constitutes workplace harassment.
- A straightforward statement that such conduct is prohibited by law and company rules.
- A clear procedure for employees to make complaints (i.e. whom to complain to) of workplace harassment. NOTE: Best practice is for the complaint procedure to identify more than one individual who can receive a complaint, with at least one such individual being a female.
- Details on how the hotel will handle a complaint.
- An assurance that an employee will be protected against retaliation for making a complaint. (Be aware that “retaliation” is broadly defined, and can include a poor performance review, or reassignment to a less desirable shift or less prestigious position.)
- An assurance that the hotel will keep the name of the employee who made the complaint and the information in the complaint confidential to the extent practical.
- A statement encouraging employees to report any inappropriate conduct immediately so that it can be investigated.
- An assurance that the hotel will take immediate and appropriate action to investigate the complaint, and that if it discovers harassment has occurred, immediate corrective action.
Workplace Harassment Training
To mitigate workplace harassment, it is very important to educate all employees. Employees need to know the basics of respectful and professional behavior, and where to turn if they are the victims of harassment. Managers, however, have additional issues of which they should be aware, such as: how to end disrespectful conduct, how to avoid liability, how to handle complaints, the investigation process and anti-retaliation rules. Therefore, the best practice is to train for managers separate from non-managerial staff.
Managers should maintain awareness of employee interaction and keep open channels of communication with employees on a regular basis both in group settings (e.g., staff meetings) and in one-on-one discussions. Supervisors must immediately report any complaints to their employer so an immediate investigation can be conducted.
Investigating a Complaint
Once an employer receives notice through a formal complaint or via reports from managers or other employees that inappropriate conduct has occurred, the employer must investigate and correct any discovered misconduct. Investigations must be conducted properly, and THLA can assist you with developing an investigation plan.
If misconduct occurred, disciplinary action should be taken quickly, objectively, and thoroughly. Appropriate remedies should be reasonably calculated to end the harassment without adversely affecting the terms and conditions of the victim’s employment in some way. Employers should consider visiting with legal counsel at this point in the process.
Workplace harassment is a serious concern, and hoteliers should adopt clear policies to prevent harassment from occurring and effectively deal with harassment concerns when they do arise. Having comprehensive policies against workplace harassment and procedures in place for handling all complaints is vital to responsibly managing this issue and avoiding potential litigation.
If you have additional questions about preventing workplace harassment at your lodging property, please do not hesitate to contact THLA at 512-474-2996.