Mr. Glincher

Hospitality Law

Protecting Against Discrimination Claims When Dealing with a Diverse Workforce

By Andrew Glincher, Office Managing Partner, Nixon Peabody LLP

There is no industry in which these questions create more of a real-world challenge than the hospitality industry. With many layers of employees - ranging from management to entertainers to housekeeping and maintenance staff, whose formal education may differ and who may be relatively new to this country - the hotel industry has a very diverse personnel structure.

While certainly yielding many benefits, this diversity of culture and background can present significant challenges when it comes to labor and employment issues. It can also expose management to a far greater number of employment-related disputes than may be found in many other industries, making it particularly important for hotel owners and operators to take steps to ensure they are doing everything possible to comply with labor and employment laws and to create a harmonious and productive working environment that will have the side benefit of mitigating the potential for claims and lawsuits from issues such as gender or racial discrimination and sexual and racial harassment.

Over the years, employee manuals have become commonplace in the corporate world. It is essential that hotel management have appropriate posters and have such a manual and ensures distribution to all employees and managers. The manual must include the company's policies with respect to and prohibiting harassment and discrimination, and state the company's practices and procedures for reporting and for investigating and dealing with complaints of inappropriate workplace behavior. In addition, a series of training sessions, repeated annually, for all employees, from the most senior to the most junior, can be extremely helpful and assists in raising awareness of inappropriate behavior . Having a professional meet with and interact with all level of staff can highlight potential problem areas before they flare up, make management and other employees aware of their responsibilities, and give problem employees one-on-one guidance on what they can and cannot do. Not only do employee manuals and follow-up training make policies clear, but, in the event that a complaint is lodged against the company, it is clear that the employer has made a good faith effort to prevent illegal and inappropriate behavior.

Hotel owners and operators should also consider conducting periodic diversity audits as part of a comprehensive program.

Typically performed by outside professionals, diversity audits provide an excellent tool for identifying potential trouble spots within a diverse workplace. Not only do such audits yield valuable information about gaps in a company's labor and employment practices, they also can offer a roadmap for improving the environment. If a claim is filed against the company, such proactive efforts can also be a key element of a defense - providing additional evidence of the company's good faith efforts to ensure diversity.

Significantly, we have also found that setting up tiered dispute resolution systems can be an important tool in resolving workplace issues and avoiding litigation. With such a system, built into the organization, there would be a policy that enables any employee with a harassment or discrimination complaint to have such complaint heard internally by a superior. If that initial attempt does not resolve the problem, the complaint would move to a second stage of dispute resolution where the complaint would be heard by another hotel official. Our experience has been that, even though many complaints are serious, they can be resolved if the parties are required to talk about them, and if there are structures in place with experienced people to carry out the process. It is likely that the workplace will improve materially, that it will be known that there is a safe place to bring problems, and that, by having a place to talk, real issues will be brought into the open and therefore be capable of resolution.

In an industry like the hotel industry, owners and operators need to be particularly attuned to issues of harassment and discrimination in the workplace - and diligent about preventing them and rectifying them. Diversity audits, tiered dispute resolution, employee manuals and other information and, training programs are valuable tools to be used in that effort. While we speak here of resolution of disputes, our focus is really on prevention. While it takes some effort and involves some expense up front, the dividends for a collegial workplace and the avoidance of problems is tremendous.

Andrew Glincher specializes in the negotiation and resolution of business and real estate disputes. Mr. Glincher has represented developers and owners of retail centers, hotels, movie theatres, office and industrial buildings and parks, utilities, restaurants, subdivisions, apartment complexes, assisted living housing complexes, long-term care facilities and condominium projects. Mr. Glincher is admitted to practice in Massachusetts, the U.S. Court of Appeals, Third Circuit, the U.S. District Court, District of Massachusetts and the U.S. Tax Court. Mr. Glincher can be contacted at 617-345-1222 or aglincher@nixonpeabody.com Extended Bio...

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