And one can hardly forget the steady stream of business executives, entertainment moguls, and political leaders scandalized their organizations with outrageous details of men behaving badly. So where have employers, and those who work with them to get it right, gone wrong? Why are the herculean efforts of HR departments calming the rising tide of harassing behavior?
The answer is that we are focusing too much on what not to do under the law (and what we have to do to have a potential defense to liability), rather than providing employees and their managers with tools on how to create positive work relationships and foster psychological safety in their work groups. To be sure, harassing behavior is more than the product of a bad employee; it is symptomatic of a toxic work environment. In such environs we often find:
Although there can be much discussion on the cultural causes of sexual harassment, what is clear is that workplace harassment allowed to ferment is the source of serious liability to business. It can be a sales dropping, share price lowering, brand tarnishing business killer. The #Metoo movement is a paradigm shift and call for a new approach to tackle this problem.
The good news is that we have a number of innovators who are solving parts of the problem, and their work can be brought together to form a new training regime that works to prevent harassment. I commend to you Professors Christine Pearson and Christine Porath and their work, “How incivility is damaging your business and what to do about it.” Leonardo Inghilleri’s work on training empathic skills to hospitality employees, and of course Google’s Project Aristotle and its steps for developing effective teams.
So, what is working? Training that includes protocols which teach employees and more importantly managers on how to foster good working relationship in their workgroups. We recommend revamping sexual harassment avoidance training to include 6 protocols.
A prevention program built around these principles will help employers to do more than just comply with the law – it will reinforce the notion that everyone plays a critical role in preventing workplace harassment (or any other kind of misconduct for that matter) and creating a successful workplace culture. It will also empower employees with the tools to step in and stop it. These, in turn, will help employers to achieve their business goals – from decreasing harassment occurrences to improving performance and morale. It is hard to argue against such benefits. It is clear, change is rapidly occurring and this next generation workforce is not silent.
]]>No “Employment at Will”
The U.S. concept of employment at will does not exist in Canada. In Canada, both employment standards legislation and the common law require an employer that terminates an employee’s employment without just cause to provide certain entitlements.
Under the employment standards legislation in each province, an employer must provide an employee notice of termination of employment in lieu of notice (usually one week per year of service to a maximum of eight weeks: more for group terminations), unless the employee is terminated for willful misconduct or willful neglect of duty. Some jurisdictions also require an employer to pay severance pay in addition to providing notice. For example, in Ontario, an employee with five or more years of service with an employer that has an annual payroll of at least $2.5 million is entitled to one week’s pay per year of service up to a maximum of 26 weeks.
The common law requires that an employer provide an employee “reasonable” notice of termination or pay in lieu of notice unless just cause exists, there is a clear agreement otherwise, or a union represents the employee. Reasonable notice for each employee is determined on a case-by-case basis and depends on a number of factors, such as the employee’s position, age, and length of service, and the availability of similar employment elsewhere. Reasonable notice at common law almost always exceeds the notice required by applicable legislation.
Pregnancy and Parental Leave
Whereas the U.S. Family and Medical Leave Act (FMLA) requires an employer to provide an employee up to 12 weeks of unpaid leave, employment standards legislation in all Canadian jurisdictions require an employer to provide up to at least 52 weeks of pregnancy and parental leave. In addition, the right to pregnancy and parental leave applies to all employees in Canada, not just to those employed by employers with 50 or more employees (as provided by the FMLA).
Discrimination and Harassment
Prohibitions against discrimination and harassment in employment under various U.S. statutes, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act of 1967, may be found in each province’s or territory’s human rights legislation (e.g., in Ontario, the Human Rights Code). Canadian human rights legislation in all jurisdictions prohibit discrimination and harassment on the basis of sex, disability, age, race, national or ethnic origin, color, religion or creed, marital status, and sexual orientation.
An employee in Canada may not file a civil action for discrimination, as is permitted in the United States. An employee may complain only to an administrative tribunal in the province he or she works, which adjudicates complaints. Administrative tribunals across Canada have wide powers to order reinstatement of employees, to require an employer to take steps to prevent discrimination and harassment, and to award monetary compensation. Monetary awards, however, are generally much lower than U.S. jury awards.
There are other significant differences between Canadian and U.S. employment laws. Local legal counsel can help to ensure that you are in compliance with all applicable laws. Other Canadian employment-related laws with which you should comply include:
For more information on Canadian employment law issues, contact James R. Hassell or Patricia S.W. Ross of the Employment and Labor Law Department of Osler, Hoskin & Harcourt LLP Barristers & Solicitors:
(416) 362-2111
P.O. Box 50
1 First Canadian Place
Toronto, Ontario, M5X 1B8
Or log on to www.osler.com, Osler, Hoskin & Harcourt’s website, which contains numerous articles on Canadian labor and employment law: canadaonline.about.com/od/labourstandards/Canada_Employment_and_Labour_Standards.htm for links to Ministry of Labour websites across Canada that provide information on employment standards, health, and safety, and labor relations, and to www.ohrc.on.ca, for Ontario’s Human Rights Commission, and links to other human rights agencies across Canada.
Provided by James R. Hassell and Patricia S.W. Ross of Osler, Hoskin & Harcourt LLP, Toronto, Ontario. www.osler.com.
]]>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.
]]>Two major cities have responded by enacting ordinances to address the problem, while unions representing hotel employees have raised the issue in collective bargaining. But all hotels, regardless of location or whether they are unionized, should be concerned about the issue and would be wise to take steps to address it.
Cities And Unions Take Steps To Combat Hotel Harassment
As mentioned above, cities and unions alike have initiated responses to address the problem of guest harassment of hotel employees. In November 2016, voters in Seattle approved the Hotel Employees Health and Safety Initiative, which requires hotels to provide a “panic button” to employees working alone in guest rooms. An employee may use the button and stop performing their work if they reasonably believe that an ongoing crime, harassment, or other emergency is happening in their presence.
The law further requires employers to maintain a list of all guests accused of violence or sexual harassment against an employee within the five preceding years. When a listed guest stays at the hotel, employers must notify any employee assigned to work alone in that guest’s room of the situation and warn them to exercise caution. Further, if a guest is accused of assault or harassment of any kind, and that accusation is supported by a sworn statement, the hotel must refuse service to that guest for a period of three years. Finally, Seattle’s new law provides certain protections for employees who report assault or sexual harassment, and requires employers to post notices of the law in the workplace.
In October 2017, Chicago passed similar legislation, called the “Hands Off Pants On” ordinance. Like Seattle’s law, the ordinance requires hotels to provide panic buttons to all employees who work alone in guest rooms or other areas. The ordinance further requires hotels to develop, maintain, and comply with a policy prohibiting sexual harassment. Among other things, the policy must:
You should expect to see similar legislation passed in other jurisdictions during the coming months and years. Even if your business does not have operations in Seattle or Chicago, you should consider taking similar steps in an effort to reduce problems and provide safer working conditions for your employees.
In addition to anti-harassment legislation, unions representing hotel employees have prioritized the issue of guest harassment at the collective bargaining table. As a result of negotiations, housekeepers at all unionized hotels in New York City have been equipped with panic buttons since 2013. Just recently, unions representing hotel employees in Las Vegas announced their plan to request panic buttons in upcoming negotiations, and you can be sure the issue will be a top priority for other unions across the country in coming years.
Hotels Everywhere Should Take Preventive Steps Now
Should hotels outside Chicago, Seattle, New York, or Las Vegas be concerned? In short, yes. Under Title VII and many state antidiscrimination statutes, you may be held accountable if an employee is sexually harassed by a hotel guest or other third party. Generally, an employer can be found liable if it knew or should have known of the harassment, and then failed to take prompt and effective remedial action. Moreover, the employer may face tort liability for such harassment if it knew in advance or should have known that a guest posed a risk.
In large measure, the steps you should take to protect employees from guest harassment—and, incidentally, minimize liability from such harassment—are from a familiar playbook. As with any anti-harassment policies, you should clearly state that sexual harassment by guests (or any other third party, for that matter) is unacceptable. The policy should explain how employees should respond if they are subjected to such harassment and provide multiple avenues for reporting an incident. Also include a statement assuring employees that they will not be retaliated against for making such a complaint.
However, having a policy in place is only the first step. You should train employees on your policies, as well as how to respond if they are faced with guest harassment. In the same vein, train management how they are to respond to employee reports of sexual harassment by a guest. In some instances, managers will be required to respond quickly and may not have time to seek guidance from upper-level management, human resources, or legal counsel.
In addition to training your employees, you should conduct assessments of your operating procedures and physical premises to determine what means are available to reduce or eliminate any risks to employees who work alone, such as implementing the panic buttons required in Seattle and Chicago.
Conclusion
In this era of heightened awareness about sexual harassment, all employers need to make sure their employees are afforded a professional working environment. Now that you know how frequently hotel employees encounter naked guests or receive unsolicited kisses, hugs, and propositions for sex, hoteliers are increasingly responsible for protecting their staff from sexual harassment. Your employees need to know that you find these kinds of actions absolutely unacceptable and that you will take every effort to prevent their occurrence. The simple steps outlined above can help to protect your employees, while also minimizing your hotel’s legal liability.
For more information, contact the author at DMackender@fisherphillips.com or 303.218.3650.
]]>It’s bad enough when one has to defend against fabricated allegations about racial slurs and name calling, let alone when it apparently, in fact, happened. Such a situation is a nightmare for an employer, and to state the obvious, should never have occurred. But never say that “it couldn’t happen in my company.”
How Could This Happen?
The conduct described in this case is reprehensible. But did it start somewhat innocently and escalate to something this terrible? Was this a decent company asleep at the wheel and not a throwback to a place found in the recent movie, “Django Unchained”?
We can only speculate, but according to the EEOC’s lawsuit, Contonius Gill and Robert Floyd, Jr., both African-American, worked as truck drivers for A.C. Widenhouse. From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility’s general manager, (who was also his supervisor); the company’s dispatcher; several mechanics; and other truck drivers, all of whom are white. The comments and slurs included “n—–r,” “monkey” and “boy.” Gill testified that on one occasion he was approached by a coworker with a noose and was told, “This is for you. Do you want to hang from the family tree?” Gill further testified that he was asked by white employees if he wanted to be the “coon” in their “coon hunt.”
The other employee, Robert Floyd, testified that when he was hired in 2005, he was the only African-American working at the company. Floyd said the company’s general manager told him that he was the company’s “token black.” Floyd testified that on another occasion the general manager told him, “Don’t find a noose with your name on it,” and talked about having some of his “friends” visit Floyd in the middle of the night. Gill repeatedly complained about racial harassment to the company’s dispatcher and general manager, and Floyd complained to an owner of the company, but the harassment continued, according to testimony
Action Points
Absolutely nothing will get the EEOC’s attention faster than allegations of nooses, KKK markings or use of racial slurs like “coon.” The EEOC is actively looking for such cases to litigate so as to “send messages” to discourage bad behavior. They may not be too picky about their fact checking, so if you receive an EEOC charge, even if the claim seems patently frivolous, call counsel. The EEOC is especially interested in cases where they believe that the complained of behavior suggests systemic discrimination, which may broaden into a class action or company wide scrutiny.
Our advice? Stop bad behavior before it gets so bad. Everyone expresses outrage at the allegations in this type of case, but what kind of culture allowed things to get to that point?
Ask yourself: “What is human resource’s role or upper management’s in preventing this kind of problem?”
Does your company take seriously its Complaint, Non-Discrimination and No-Harassment policies? Do you regularly train employees and supervisors . . . or, just pay lip service to the idea? Now, ask these same questions about each of your sites.
Annually train supervisors about effective discipline and discharge. Many supervisors come up through the ranks and do not know how to deal with such conduct. Don’t focus solely on Non-Discrimination and No-Harassment obligations – instead, demand “professionalism.” Always promptly investigate even seemingly minor claims and respond to the claimant.
Finally, remember that lawsuits “walk into your workplace on two feet.” I am not focusing on legitimate claims. I am talking about fabricated or frivolous claims. There seems to be a self-selection process where the employees with the bogus discrimination claims file suits, and individuals with genuine grievances, simply get another job. Neither outcome is good.
So, in addition to maintaining a professional workplace where such behavior doesn’t occur, recognize the type of hire who may use such claims as a means of retaliation for some grievance, or who always assumes that any adverse action is due to discriminatory intent rather than their own performance.
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