Keep a check on sexual harassment

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Follow these 5 steps to be aware of and prevent sexual harassment in your hotel.

by ANKIT BHAKTA

Harvey Weinstein. Kevin Spacey. Louis C.K. Charlie Rose. Matt Lauer. Al Franken. Bill O’Reilly. Need I go on? Spurred by the #MeToo movement, sexual harassment is emerging as one of the top employment issues of 2018. With that in mind, refreshing your knowledge of the laws prohibiting sexual harassment (and making sure your supervisors also understand these laws) is crucial in the hospitality industry.

The law

Under Federal law, while Title VII forbids discrimination, harassment has been held to be a form of prohibited discrimination. As such, harassment on the basis of sex (and race, color, religion or national origin) is strictly prohibited by Federal law. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.

Many states have also passed their own laws addressing the issue and provide even broader protection from sexual harassment. Look up whether your state has its own laws and make sure you understand your obligations (including whether supervisors must attend mandatory sexual harassment training).

Lessons to learn from

Now that we have a general understanding of sexual harassment law, you may be thinking just prevent harrassment, end of story. While most of us have a good idea about what sexual harassment is and isn’t, a quick look at some examples where businesses spent hundreds of thousands of dollars litigating exactly what constitutes sexual harassment teaches us some valuable lessons.

Sexual harassment doesn’t have to be motivated by sexual desire.

As an example of the importance of looking at your own state’s laws on sexual harassment, let’s took a look at a case from my home state of California. In Taylor v. Nabors Drilling USA, LP, plaintiff Max Taylor worked as a floorhand on an oil rig. His co-workers frequently called him a “queer,” “faggot,” “homo,” and “gay porn star,” even though they knew he was not homosexual. After his employment was terminated for poor performance, he sued his employer under California’s Fair Employment and Housing Act. The employer argued that the conduct was not sexual harassment because the employees knew Taylor was not homosexual and they had no sexual feelings towards Taylor. In rejecting this argument, the Court of Appeal stated, “here sex was used as a weapon to create a hostile work environment for respondent.” The Court awarded the employee $150,000 in damages, awarded attorneys’ fees of $680,520, and ordered the recovery of additional costs and attorneys’ fees on appeal.

Sexual harassment doesn’t have to be directed at the victim.

In EEOC v. PVNF, L.C.C., a female manager at a car dealership was subjected to a litany of sex-based comments. For example, after she hired another woman, she was reprimanded and told “men don’t like to work with women.” She had also seen a vulgar email between two male employees making comments about her, her panties and her genitalia. The employer argued, in part, that the email was not discrimination/harassment because the woman was never intended to see it. The Court minced no words in addressing how it felt about this argument: “[w]ith this last proposition, we heartily disagree. Such a statement is akin to asserting that a person who overhears her coworkers using sexually derogatory terms to describe her cannot be subjected to a hostile work environment merely because the coworkers did not intend her to hear them. This is not the law of this Circuit. We have never held, nor would we, that to be subjected to a hostile work environment the discriminatory conduct must be both directed at the victim and intended to be received by the victim.”

Sexual harassment protects men too.

This one seems obvious. In EEOC v. Prospect Airport Servs., Inc., a female employer was vigorously pursuing a male co-worker named Rudolpho Lamas. She wrote him a series of love notes stating that she was turned on and wanted to go out, that she was having crazy dreams about them in the bathtub, that she gave a very good bath wash and body massage, and that she wants him sexually and romantically. She even gave him a topless photo of herself. After numerous complaints to his supervisors, the conduct continued. She would perform highly suggestive gestures when Lamas would walk by her at work. To make matters worse, co-workers began to speculate that Lamas was gay, and he heard rumors and remarks to that effect. The 9th Circuit expressed disdain at the lower court’s reliance on Lamas’ admission that “most men in his circumstances would have welcomed her advances.” The 9th Circuit wrote, “Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons….[s]ome men might feel that chivalry obligates a man to say yes, but the law does not.” All complaints of sexual harassment ought to be taken seriously – regardless of the victim’s gender or the harasser’s looks.

A business can be liable for failing to prevent sexual harassment from a third-party.

Decided in October 2017, M.F. v. Pac. Pearl Hotel Mgmt. LLC provides a stark reminder of the need for supervisors in the hospitality industry to thoroughly investigate complaints of harassment and take reasonable steps to prevent harassment. In this case, a drunk trespasser wandered onto a resort property and began propositioning housekeepers for sex. A housekeeper broadcasted the trespasser’s activities and location to the housekeeping managers by walkie talkie. The resort property had five separate buildings, and each housekeeping manager was assigned a different building. Unfortunately, the housekeeping manager assigned to the victim’s building checked only the first floor and not the second floor (where the victim was working). In fact, the drunk trespasser had knocked the victim unconscious and raped her in another customer’s room. Although the employer successfully demurred at the trial-court level, the appellate court reversed the ruling and held that a question of fact remained as to whether the employer complied with its obligation to “take immediate and appropriate corrective action.” Although this is another case coming out of California, the EEOC and federal courts (See, e.g., 29 C.F.R. § 1604.11(e) and EEOC v. Cromer Food Servs., Inc.) have similarly concluded that an employer may be liable for the harassment of its employees by non-employees if the employer knew or should have known of the harassment and failed to take appropriate corrective action to stop it.

Best practices

The best way to combat sexual harassment is to take a holistic approach incorporating the following steps:

  1. Be proactive about preventing harassment, including ensuring supervisors are properly trained in identifying and responding to workplace harassment. All businesses should also have written policies against harassment, a clearly defined complaint procedure, a team-based approach to spotting harassment, and a reassurance that employees will not be retaliated against for reporting harassment.
  2. Make sure reporting channels are always open. This entails creating a workspace where employees feel comfortable reporting harassing conduct and ensuring adequate real-time means of communicating during emergencies (such as proper use of a walkie talkie network for housekeepers).
  3. Ensure that each complaint of sexual harassment is thoroughly investigated and that appropriate action is taken.
  4. Communicate the results of the investigation and the action that was taken to the victim so he/she feels heard and protected.
  5. Continue monitoring the situation and whether the action taken was effective. Turning a blind eye will not prevent liability.           ■

Ankit Bhakta is an attorney in Rutan & Tucker’s Labor & Employment Section. He represents clients in  federal and state courts in California in all phases of litigation. He also represents and advises employers on all aspects of compliance with federal and state employment laws and regulations including litigation prevention, wage/hour issues, labor relations, employment agreements, discrimination and harassment laws, and wrongful termination. He can be reached at abhakta@rutan.com.

 

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