Harassment: A 5 Step Plan for Hotel Managers
By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | April 14, 2019
Hotel owners and operators place great trust in their managers because managers are in the trenches everyday fielding guest complaints, overseeing operations, and supervising employees. Because of this role, managers are often in the best position to both prevent harassment in the workplace from occurring and also to prevent a harassment lawsuit.
Moreover, in many states, not only can managers be held personally liable for claims of harassment, discrimination, and retaliation, their employer can be held strictly liable for the actions and inactions of their managers as well. This article outlines five key steps for managers to stay on the forefront of the #MeToo movement: (1) know the policy; (2) look for warning signs; (3) remember managers are always leaders; (4) handle complaints; and (5) contact human resources.
1. Know the Policy
The first step to effectively enforcing an anti-harassment, discrimination, and retaliation policy is simply to know the policy. A well-crafted anti-harassment policy will have a zero tolerance policy against all forms of unlawful harassment, discrimination, and retaliation on the basis of a protected category. While protected categories vary by state, federal law specifically protects individuals from harassment, discrimination, and retaliation on the basis of race, color, religion/religious creed, national origin, gender/sex (includes pregnancy, child birth, breast feeding, and related medical conditions), age (if 40 or above), disability (mental/physical), protected medical conditions, veteran status, family leave, and citizenship status.
Many other states also protect sexual orientation, gender identity, and gender expression. The term "zero tolerance" should not be taken lightly and managers must be prepared to spot harassment, and act swiftly and appropriately to address it.
While an anti-harassment policy should list examples of prohibited conduct, such as unwanted sexual advances, groping, kissing, hugging, touching, blocking movement, inappropriate verbal, graphic, or physical conduct, jokes based on a protected activity, racial slurs and epithets, mocking another's religious beliefs, or sending or posting harassing messages or images et cetera, the list is not exhaustive.
However, the list will serve as a strong guidepost for managers of conduct that is clearly strictly prohibited. This list should also highlight examples of protected activities such as filing a complaint with a federal or state enforcement or administrative agency, participating in an investigation, testifying as a party, witness, or accused regarding alleged unlawful activity, filing an internal complaint, or assisting another employee in filing a complaint of harassment, discrimination, or retaliation.
Lastly, managers must know that the hotel's anti-harassment policy encourages complaints and includes several avenues for employees to make complaints. The strongest policies often provide employees with a physical location to report a complaint, a hotline number to call, and an email address. Every manager needs to be aware that employees can choose to communicate a complaint of harassment, discrimination, and retaliation to them.
Managers cannot choose to ignore a complaint because they do not directly supervise the complaining employee, because they are personal friends with the employee and the complaint was shared in confidence, or because they are not a human resources manager.
2. Look for Warning Signs
The best hotel managers exercise emotional intelligence and are in tune with their subordinates. One way for managers to be proactive in spotting harassment issues early and stymie them promptly is to look for warning signs. If a manager notices an employee's diminished participation in group activities, strong dislike for certain people, decreased work performance, attendance problems, and/or an increase in stress-related health issues such as headaches and nausea, they should check in with that employee to see if there are any issues that the manager can address.
In being proactive, it's important not to ignore conduct that appears "welcomed" or "voluntary." And, it is also important to avoid wearing "blinders" when it comes to concerns regarding high-performing or high-ranking employees. There's no room to allow leeway to certain employees, whatever the reason.
3. Remember Managers Are Always Leaders
Managers are never off-duty, even while not at work. Managers must model good behavior while on the job, but also in their emailing, text messaging, social media presence, and at after-hours events. Just because certain activities take place outside of work, does not mean that they cannot expose the hotel to liability or, that such messages and social media will not be discoverable in litigation. With advances in technology and the pervasive use of social media, a manager's Facebook page, Instagram, and any publicly available information will be used as "Exhibit A" in any litigation.
Moreover, a plaintiff can formally request access to any relevant private communications through the discovery process in litigation unless the material is in some way privileged. Before sending written communications to employees, managers should consider, "would I want a judge or jury to see this message?"
Moreover, managers play a large role in the development of company culture, as such they help set the right tone for a workplace environment that does not brew a culture of harassment. Remind managers not to gossip or bad-mouth others and to practice acceptance and inclusion.
4. Handle Complaints
As previously discussed, managers need to be aware that employees may come to them with a complaint even if they do not directly supervise them. When a manager receives a complaint, it is essential that managers take immediate action. Delays could send the wrong signal and could be exploited in a subsequent legal proceeding.
For example, a delay could signal to the complainant that the Company has decided not to investigate his or her complaint which may escalate the situation. Or, if an under-performing employee complains to a manager who then fails to report the complaint to Human Resources before the employee is terminated, this could expose the employer to a retaliation lawsuit.
Managers should listen to complaints carefully and impartially. They should assure the complainant that they will take his or her complaint seriously and that he or she will not be retaliated against in any way for bringing the complaint. They should conclude by telling the employee that they will protect the employee's privacy to the extent possible but that they must report the situation to human resources. There can never be an "off-the-record" discussion; it cannot be "just between the two of them."
This is perhaps the most important step, but it is often skipped. One of the downfalls of an emotionally intelligent manager can be that they sometimes take their legal hat off when, for example, they know which employees are "trouble-makers," which employees are always looking to skirt responsibilities, and which employees "always exaggerate" or "always complain." However, under the law, although burdensome, all employee complaints need to be taken seriously. After all, it is often the "trouble-makers" that are most likely to file a lawsuit.
5. Contact Human Resources or Ownership
Managers always and immediately need to report any potential violations of the anti-harassment, discrimination, and retaliation policy to Human Resources, or Ownership. When defending an employer in a lawsuit, a thorough investigation and documentation are key. As such, it's important for managers to report all potential issues to the appropriate decision-maker, even if they seem minor, so that there is a paper trail of the employee's harassing behavior and/or employee complaints should a situation escalate in the future. Managers should provide any notes taken or relevant emails or texts and understand that those communications to evaluate the situation.
However, managers must also be discreet. The more people who know about an issue the more the issue may escalate. Issues regarding harassment, discrimination, and retaliation are often very personal and emotional for both those who are alleged victims of harassment and those who may have been falsely accused of harassment. Complaints can divide employees and the possibility of unlawful retaliation is a real risk. As such, there is no need to tell anyone not directly authorized to know about the situation unless instructed to so.
Effective management is a tall task, and remembering to keep strategies in mind for potential litigation does not make the task any easier. Managers who follow this five step plan will help their hotels prevent harassment, discrimination, and retaliation lawsuits, but most importantly, these steps will equip managers to foster harassment-free workplaces. Many states now require that employers maintain and enforce anti-harassment policies and also conduct anti-harassment trainings.
As the #MeToo movement continues to grow, laws requiring employers to take specific measures to address harassment in the workplace are only going to expand. Contact your labor and employment counsel for guidance regarding best practices and requirements in your state.
This article provides an overview of the law and is not intended to be, nor should it be construed as legal advice for any particular fact situation.
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