In July 2018, Chicago implemented an ordinance that requires hotels to provide “panic buttons” for their workers. The intention is to protect anyone working alone in a guestroom from sexual harassment. If pressed, the button sends a message to the supervisor and human resources department, and provides the name and location of the employee. Seattle and New York also require panic buttons, and other cities are considering similar measures.
Hotel staff can be particularly vulnerable to both guests and co-workers/supervisors. The industry attracts outgoing, friendly employees who are supposed to be people pleasers. However, being friendly does not mean that the employee should be subjected to improper sexual comments and/or advances. But when you add those outgoing personalities to the 24-hour service mentality and private rooms, it can be a recipe for bad conduct from both guests and coworkers alike. After all, human resources staff (even when located onsite) generally work during regular business hours and are not available during all shifts.
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Moreover, employers need to focus on prevention and communication without concern about litigation. Hotels need to focus on protecting their employees, providing them with both training and resources on what to do if they are confronted with harassing conduct, and taking appropriate action to ensure that such conduct does not recur. Training is not a roadmap to employees on how to pursue litigation—it is a necessary step to eradicate the conduct.
Despite the fact that it was 1986 when the United States Supreme Court first issued an opinion recognizing that that sexual harassment violated Title VII of the 1964 Civil Rights Act and would lead to damages for an aggrieved plaintiff, many studies show that employees are still not clear on what behavior constitutes harassment that would violate their company’s policy or the law. And, the #metoo movement shows that these issues persist. Hotels need to focus on what their policies say and training employees on their policies. This training must be backed up by enforcement of that policy.
First, hotels should take a hard look at their policies. Does the policy only deal with harassment that would rise to the level of legally actionable harassment? If so, the hotel should revise that policy to prohibit all conduct regardless of whether it is “sufficiently severe or pervasive” to constitute unlawful harassment. Does the policy also tell employees how to report harassment from hotel guests and what to do? If not, the policy should be revised to include such information. Moreover, the policy must explain to employees what the consequences will be to their employment if they either engage in conduct themselves that violates the policy or they are aware of such conduct and do nothing. Finally, the policy must prohibit retaliation for reporting violations, including against guests, and ensure confidentiality of the allegations.
Second, these policies should be communicated to employees separately from the handbook. Of course, the harassment policy must be included in the handbook for reference, but it should be separately discussed and reviewed during onboarding of any new hotel employee. Doing so shows staff that the hotel takes that policy seriously and ensures that employees are aware of the policy and know how to report violations.
Third, hotels should provide meaningful training to their management/supervisory staff. Obviously, this training must include what conduct constitutes harassment under their policy and how to deal with employees/guests who violate the policy. Management should also be strongly admonished that failure to deal with reports of such conduct will lead to disciplinary action for themselves, up to and including termination.
Fourth, hotels should train their hourly staff on the harassment policy, and remind them of what they learned during onboarding about how and where to report conduct that potentially violates the policy. This training must emphasize that the hotel will take appropriate action (discipline or termination) against employees or guests who violate that policy. Finally, the employees should be reminded that the hotel will not retaliate against an employee for making such a report and will conduct a confidential investigation into all complaints.
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The real test comes when a hotel is confronted with an allegation of harassment. Employees will be expecting the hotel to adhere to its policy even when a guest is involved. Again, the focus needs to be on prevention of future acts of inappropriate conduct and not whether the hotel will be subjected to litigation. Litigation is far more common in cases where an employer fails to deal with a report of harassment than when the employer investigates and cannot substantiate the allegations. Even those cases where nothing can be substantiated, all parties should be reminded of the policy and that conduct of the nature alleged would violate the policies and will not be tolerated.
Implementation of these steps will not eradicate all harassment. But implementing them will provide the hotel the tools to deal with complaints before they turn into potentially costly litigation.
Carrie Hoffman is partner with Foley & Lardner and counsels major employers nationwide in all areas of labor and employment law across a wide range of industries, including hospitality and retail.