Harassment Claims Continue To Capture Spotlight

In light of the sexual abuse allegations against high profile individuals and the subsequent #MeToo Movement, EEOC Acting Chair Victoria Lipnic has announced workplace harassment issues are a priority for the agency. She pointed out that harassment “causes serious harm to women and men in all kinds of jobs across the country,” and commended not only the EEOC legal teams for their work but also the individuals who came forward with complaints, many of whom alleged they suffered retaliation as a result.

One case against a country club in California involves claims of sexual conduct by a manager directed at female employees, including soliciting naked pictures, grabbing their buttocks, attempting to kiss them, and requiring sexual favors for job benefits. The EEOC lawsuit alleges that when women refused, the manager threatened termination and reduced their working hours in retaliation.

A sports bar in New Mexico also faces an EEOC lawsuit for sexual harassment of female employees by managers and coworkers. Reported behavior included requests to “show more cleavage” in their uniforms, crude comments about their breasts and buttocks, comments by male employees about their penises, text requests for sex, and unwelcome touching. This case also alleges retaliatory actions against the women for complaining.

EEOC’s Push Includes Other Claims As Well

But sexual harassment is by no means the only kind of claim being faced by hospitality employers. The recent wave of EEOC litigation also includes claims of age discrimination, pregnancy discrimination, and failure to accommodate employees under the Americans with Disabilities Act (ADA), among others.

For example, a Georgia-based sports bar is facing an EEOC lawsuit alleging pregnancy discrimination. The lawsuit alleges that a pregnant bartender was demoted to a lower-paying server position because of her pregnancy. EEOC officials brought the lawsuit stating that “physical appearance alone is never a sufficient reason for taking adverse action against a pregnant employee” and depriving her of income.

The most recent lawsuit was filed against the Grand Hyatt in New York City on August 15, alleging failure to accommodate a front desk employee with a disability. The EEOC alleges that the hotel violated the ADA by forcing the employee to stand while performing his duties despite his request for a sitting accommodation due to a spine condition. The lawsuit alleges that the hotel initially accommodated the employee by allowing him to sit, then required him to resume standing, causing him significant pain and forcing him to take an unpaid leave.

Conclusion

The wave of lawsuits by the EEOC shows that the agency is beefing up its enforcement efforts in priority areas. The EEOC’s most recent Strategic Enforcement Plan outlines the agency’s priorities and includes ensuring that employers comply with obligations to accommodate disabled employees, protecting pregnancy employees’ rights, and stamping out harassment and retaliation in the workplace.

Now is the time to review your EEO, harassment, reasonable accommodation, and anti-retaliation policies to ensure that they meet modern standards. You should also train your managers and supervisors to ensure they are enforcing those policies, and confirm that employees are aware of your company’s commitment to a discrimination-free and harassment-free workplace.

For more information, contact the author at ARyan@fisherphillips.com or 404.240.4219.

Policies Should Cover Everything…

A policy should address all aspects of employee dress and appearance and explain that theemployer’s professional atmosphere is maintained, in part, by the image it presents to the public and its guests. The policy should require that all employees present a professional, neat, and well-groomed appearance. The policy should address good hygiene, uniform requirements, and proper safety-related attire (such as closed-toe shoes).

Tattoos, body piercings, gauges and other forms of self-expression have become commonplace and society seems to have become more accepting of individuals’ choices for self-expression. However, some of these forms of self-expression may not be appropriate for a customer-service industry such as the hospitality industry.

Although some are hesitant to do so, employers can legally set limits on self-expression in the form of tattoos, piercings, and extremes in dress, jewelry, and hairstyles. Some employers have found a zero-tolerance policy too strict and have adopted less stringent policies.

Many employers now permit body piercings or tattoos within certain limits, such as limits on the number, size, placement, or visibility of the tattoos, or limits that prohibit the display of any racially offensive, sexually explicit, violent, or otherwise offensive tattoos. In the final analysis, your policy should clearly articulate what is permitted and what is prohibited in your workplace. Once you have articulated your policy, enforce it consistently.

…But Allow Some Exceptions To Peek Through

The Equal Employment Opportunity Commission (EEOC) has weighed in on this issue. In general, the agency says an employer may establish a dress code that applies to all employees or employees in certain positions. There are a few possible exceptions.

While an employer may require all workers to follow a uniform dress code – even if the dress code conflicts with some workers’ ethnic beliefs or practices – a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.

Moreover, if the appearance code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the appearance code or permit an exception, unless doing so would result in undue hardship.

Similarly, if an employee requests an accommodation to the dress code because of his or her disability, you must modify or permit an exception to the dress code, unless doing so would result in undue hardship. For example, an employer may have to consider granting an exception to an appearance policy that prohibits facial hair for an employee with certain skin conditions. And remember “undue hardship” is defined differently if the accommodation requested is for religious versus disability reasons.

The courts are addressing these and other issues. In a recent high-profile case, a retailer settled several cases involving Muslim female employees who were either not hired for or were terminated from sales positions because they wore a headscarf. The retailer required its employees to comply with its “Look Policy” that prohibited “caps” to be worn, but did not mention other headgear.

In earlier cases against the same retailer, a federal district court found that an employee acted on

her belief that the Quran requires women to wear headwear, and that the fact that she wore the scarf to the interview was sufficient for the store to enter into an interactive process regarding religious accommodation. The court held that the retailer, which marketed its “look” could not claim that permitting Muslim employees to wear their hijabs is an undue hardship based on its “Look Policy.”

In another case, a restaurant discharged a cashier because her religion, Christian Pentecostal, forbids her from wearing slacks. The applicant allegedly informed the restaurant of her need for religious accommodation and offered to wear a skirt instead of the uniform pants. In finding against the employer, a court accepted the EEOC’s claims that allowing the applicant to wear a skirt would not have cost anything and thus was not an undue hardship.

Additionally, a restaurant chain paid a server $150,000 after terminating him for having visible tattoos. The employee stated that his sect believed that tattoos symbolized its devotion to its creator. The restaurant’s objection that it wanted a consistent, all-American look did not trump the religious objection.

A federal court recently found in favor of an African-American housekeeper who proved that her employer did not consistently enforce its appearance policy. In her race discrimination case, she demonstrated that the employer did not consistently enforce its policy related to braided hair styles.

Hospitality employers must be prepared to discuss and address requests for accommodation to appearance policies, ensure consistent enforcement, and train supervisors to never make kneejerk decisions when it comes to requests for accommodation. Employers have a duty to reasonably accommodate an employee’s and applicant’s sincerely held religious beliefs and employees and applicants with disabilities.

Train supervisors to seek help from Human Resources or legal when accommodations are requested. When evaluating those requests, keep in mind that the need to maintain a certain look is generally not enough hardship to justify blanket refusals.

The Biology Of Dress Codes

There are physical and style differences between sexes, and dress-code policies will reflect this fact. The key is to impose the same level of duty on both sexes, even if individual requirements differ. The obligations should not impose a greater burden on one sex or differ markedly from social norms.

A bartender sued her casino employer because its policies required women to wear makeup and prohibited men from doing so. The court concluded that the dress code did not place a heavier burden on women than men or stereotype women, as the dress code required both men and women to maintain a similar professional appearance. Courts also have found that policies requiring men, but not women, to wear ties or allowing women, but not men, to wear earrings do not violate Title VII.

Another area of developing discrimination claims involves claims that the employee was not stylish, fit, or skinny enough. While obesity is not automatically a disability under the Americans with Disabilities Act, the EEOC and state agencies are increasingly making such claims, arguing in some cases that obesity due to medical reasons is a disability or the employee is covered under the law because the employer wrongly perceived the employee as a person with a disability.

Buttoning It All Up

No matter how hospitality employers choose to deal with the dress-code issue, expectations should be clearly stated in writing and readily available to employees. While employers still retain wide latitude, practical, social, and legal factors require careful preparation of policies related to dress and appearance, as well as consideration of such requests for accommodation that might have been readily (and safely) dismissed several years ago.

Prevention in All Forms

Take a thorough look at your hotel’s security measures and processes. Ensure that your guest room locking systems and room safes meet general industry standards. Review, implement or update employee policies related to 1) package passes to control removal of property from the hotel, 2) lost and found procedures, which should be strictly enforced and 3) guest room access by employees. Consider an audit by a security expert to review your security procedures and protocols – in action.

Another criminal trend that can have a major impact on the hotel industry is identity theft. Many hotel employees have access to guest identity and credit card information. Make certain that your hotel is in compliance with the payment card industry security standards. Implement best practices related to credit card and identity documents: purge unneeded credit card data, do not imprint credit cards, ensure that only partial credit card numbers are displayed, carefully monitor charge-backs and carefully limit the employees who have access to guest identity and credit card information.

Prevention also includes proper employee screening. One of the best ways to prevent theft by your employees is to not hire a thief. Consider conducting criminal background checks on applicants and employees with access to guests, their property and hotel property. Consider credit checks on applicants and employees who have access to financial assets. And employee screening should not be finished once the employee has been hired. Require employees to report any criminal convictions during the course of their employment and conduct periodic criminal background and credit checks during employment.

Criminal background checks pose some legal risks at any stage in the employment process. In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on the use of criminal background checks in employment titled, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Although Title VII does not prohibit the use of criminal background checks, the EEOC cited concerns that employers could use arrest and conviction records to unlawfully discriminate against job applicants based on their race or national origin. A hotel’s criminal background and credit check policy should be tailored to comply with the EEOC guidance and state and local laws that restrict or prohibit criminal background and credit inquires.

The hotel also should be certain it is in full compliance with the federal Fair Credit Reporting Act (FCRA) which sets forth the requirements for authorization by the applicant or employee to conduct the background check and which has strict notification requirements for a hotel if it decides not to hire an applicant based on the information obtained in the background check. Be certain that your background screening vendor is accredited and using updated authorization and notification forms.

Responding to Suspected Theft

A common reaction to suspected theft is to discharge and make an example of the employee and hope to prevent similar actions by other employees. While an employer has the right to discharge an employee who steals, doing so can involve hidden traps. Case law is rife with examples of employers being sued by discharged employees for wrongful termination, malicious prosecution, defamation, false imprisonment, false arrest and invasion of privacy. These legal challenges are usually centered on the methods used to try to catch or prove employee theft – which can result in liability. Surveillance or recording of employees may be illegal under federal anti-wiretapping laws and some state laws. Forcing a suspected employee to sit in a room where the employee cannot leave an investigation meeting can lead to a false imprisonment claim. Searching an employee’s personal items without consent or proper notice can lead to an invasion of privacy claim. Federal laws also regulate the use of lie detectors in investigations of monetary loss.

Before conducting any kind of surveillance through video or voice monitoring, hoteliers should check state and federal law to determine whether an employee’s consent is necessary for such surveillance. Even if consent is not necessary, it is wise to inform employees at the time of their hire and throughout their employment that such monitoring may occur. Never conduct surveillance in private areas such as restrooms or locker rooms.

Policies regarding searches of employees’ lockers or personal belongings brought onto hotel property are generally acceptable and common in the hotel industry. Be certain that the policy is well publicized and acknowledged by every employee. These searches should be conducted in a manner that minimizes confrontation – such as first requesting an employee remove a lock from a locker before removing it forcibly. Loss prevention personnel and managers should be instructed that any search of an employee’s purse or briefcase should be minimally invasive and conducted with the dignity of the employee in mind. Give all employees specific instructions on how to properly remove authorized items from hotel property, through the use of a property pass or otherwise.

Investigations into theft should be carefully conducted and invasive techniques, such as polygraphs, should be avoided. Involve at least two individuals in the investigation and, optimally, one person should not personally know the accused employee. This will help avoid claims that “charges” were trumped up against an employee because of hostility by the investigator. If the company has a written protocol or established past practice for conducting investigations, the protocol or past practice should be followed. Witnesses should write their own statements in their own handwriting and all statements should be legible, dated and signed. An employee who is being investigated should be allowed to tell his or her side of the story and have it included as part of the investigation file. Otherwise, a judge or jury may feel that the employee was railroaded and falsely accused. The investigation must be thorough and an investigator should not limit the investigation to the witnesses identified by the accused if other individuals might have relevant knowledge.

While many law enforcement agencies still include a polygraph examination in investigations, employers are severely limited in the use of polygraphs. The Employee Polygraph Protection Act of 1988 (EPPA) prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment. Polygraph tests are permitted in only limited circumstances. One of those circumstances is in connection with an ongoing investigation of theft, embezzlement, misappropriation or an act of unlawful industrial espionage or sabotage. But there are strict limits to this exception, which makes the use of the polygraph exam a legally risky proposition. In order to conduct the polygraph, an employer must demonstrate that the employee had access to the property that is the subject of the investigation, that the employer has a reasonable suspicion that the employee was involved and the employer must execute a specific statement about the loss.

Employers conducting polygraph tests under circumstances permitted by law are subject to strict standards for the conduct of the test, covering pretest, testing and post-testing procedures. And most significantly, the employer cannot terminate an employee based solely on the results of the polygraph test. The employer must have additional, independent evidence of the theft before it can discharge the employee. Many employers decide not to risk running afoul of the strict requirements under the EPPA if the employer has other evidence linking the employee to the theft.

The Final Days

Risks arise again when the hotel makes a decision about what to do with the employee after an investigation into theft. Carefully consider whether police involvement makes sense. While it might act as a deterrent for other employees, it may also lead to a lawsuit by the departing employee for malicious prosecution. It is critical to have some idea as to how seriously the police will respond to allegations of employee theft. Some police departments are too overwhelmed with violent crimes to do more than write a report of the complaint. Ultimately, no police involvement is better than limited or poorly handled police involvement. If a police department is ready, willing and able to respond to reports of theft, call them when the missing item or money is discovered.

Attempting to recoup monetary losses from employee theft can be tricky business. Before engaging in efforts to recoup losses, strongly consider whether it is worth the effort. A common method of recoupment is to deduct from the discharged employee’s last paycheck or withhold the pay out for earned benefits, such as vacation or PTO. Making deductions from a last paycheck may implicate the federal Fair Labor Standards Act, and there are numerous state laws around the country that make the paycheck deduction either unlawful or extremely risky. Before embarking on efforts to recoup losses, it is strongly advised that you consult with trusted labor and employment law counsel in your particular state.

Treat the inevitable unemployment compensation claim with great care. If the employee has counsel, that attorney will likely attend the hearing and question witnesses. Take the time to prepare witnesses fully and make sure they understand the importance of the proceeding. If an employer loses an unemployment compensation claim related to employee theft, the employee may become emboldened to assert other claims. If you cannot spend the time, energy and effort needed to fully prepare for the unemployment hearing, it may well be better to not contest the claim at all.

While hoteliers can take strong steps to reduce employee theft, eliminating it entirely is likely an impossibility. The best loss prevention involves good procedures for hiring, training and supervision of employees. And by following a few best practices, employers can limit the potential liability for claims related to employee theft situations and diminish the potential for the insult of an expensive lawsuit on top of the injury of employee theft.