requirements on employers, in hopes of giving #MeToo a significant, lasting effect. So, what should employers in New York and California do now? And, given that these states are often at the forefront of labor and employment issues, how should employers outside New York and California prepare in case new laws are passed in their states?
New York’s New Anti-Sexual Harassment Laws
On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, updating the state’s sexual harassment laws. Among other changes, there are two key components under these laws. First, every employer in New York must establish a sexual harassment prevention policy. These policies should have already been adopted and provided to all employees by October 9, 2018. The New York Department of Labor and New York Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt. But employers are not required to use this model, so long as their policy meets or exceeds the minimum standards of the model and set forth in the laws. Employers must distribute the policy to all employees in writing or electronically, and must ensure that all future employees receive the policy before they start work. Additionally, employers are encouraged to post a copy where employees can easily access it.
Second, every employer in New York is required to provide employees with sexual harassment prevention training. Again, the New York Department of Labor and New York Division of Human Rights have developed model training for employers to use. Though employers are not required to use the model, they must ensure that their training program meets or exceeds the minimum standards of the model, and includes the specific minimum requirements set forth in the laws. All employers are required to train current employees by October 9, 2019, and new employees should be trained as quickly as possible upon hire. In addition, all employees must complete the training at least once per year. There is no certification requirement for trainers, and employers may use third-party vendors to deliver the training.
Importantly, employers in New York should also be mindful of the mandatory arbitration and nondisclosure agreement prohibitions that went into effect this summer, on July 11, 2018. Under New York’s new anti-sexual harassment laws, a contract cannot contain any clause that requires mandatory arbitration to resolve sexual harassment claims. Unless one of the limited exceptions applies, such clauses will become null and void. Furthermore, with respect to nondisclosure agreements, the new laws have established a three-step process for memorializing the complainant’s preference for entering such an agreement. Under the new laws, a nondisclosure agreement is defined to include any resolution of any claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment. While the new laws generally ban such nondisclosure agreements, they are not prohibited where a complainant expresses a preference for entering into one.
Where the complainant asks for a nondisclosure agreement, the following process must be observed:
Importantly, this process requires the execution of two documents: (1) the agreement memorializing the complainant’s preference; and (2) the document(s) incorporating the preferred term or condition agreed upon. Suffice it to say, through policies, training, and contract clauses, the legal landscape has changed for employers in New York, and the effect of #MeToo and increased awareness of this issue are apparent.
New Anti-Sexual Harassment Laws in California
Similarly, in California, employers are also adjusting to new sexual harassment laws. For example, by January 1, 2020, employers with at least five employees must provide: (1) at least two hours of sexual harassment prevention training to all supervisory employees; and (2) at least one hour of sexual harassment prevention training to all non-supervisory employees. Training must be conducted within six months of the employee starting the position, and must be provided once every two years thereafter. Additionally, California has enacted a law regulating provisions set forth in settlement agreements related to sexual harassment, including nondisclosure clauses. Among other things, the new law prohibits a provision that prevents the disclosure of factual information underlying the allegation of sexual harassment upon which a settlement agreement is based. Such provisions entered on or after January 1, 2019, will become void as a matter of law and as counter to public policy.
But perhaps the most significant change has had less to do directly with sexual misconduct and harassment, and more to do with empowering women in the workplace. California has become the first state to require publicly traded companies to include women on their boards of directors. Signed by California Governor Jerry Brown on September 30, 2018, California Senate Bill 826 requires there to be at least one female director on the board of each California-based public corporation by the end of 2019. Also, depending on the number of board seats, companies may be required to have up to three female directors by the end of 2021. Companies are required to report their board composition to the California Secretary of State, and may be fined $100,000 for a first violation, and $300,000 for subsequent violations. Though not as directly linked to sexual harassment as the other laws discussed above, it will be interesting to see how an increase in the number of women on boards of directors in California will change things – at the state and national levels.
Thus, a year after the #MeToo movement went viral, we are seeing the movement change from something that caused greater awareness of an issue, to something that is being acted upon by way of law. Legal obligations are changing, and employers must be extra diligent to ensure compliance. As such, employers are advised to keep a pulse on current or proposed anti-sexual harassment and related laws and the extent to which their current policies and practices may be affected. Legal changes in California and New York tend to create models for other states, some of which may already have their own anti-sexual harassment laws in the works. Furthermore, employers in New York and California should update their sexual harassment policies and training programs accordingly, and make sure to distribute the policies and implement the programs as required. They should also develop a strategy to incorporate any changes that may affect contract provisions, such as nondisclosure and mandatory arbitration clauses. And, at least in California, publicly traded companies should start thinking about who will fill those female board director seats. While there are numerous other requirements pertaining to sexual misconduct and harassment that employers must be mindful of, states like New York and California have certainly begun to give the #MeToo movement a more significant and sustained impact.
About Conn Maciel Carey
Conn Maciel Carey is a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation. The clients we serve — from multi-national organizations to individuals — seek us out for strategic guidance ranging from day-to-day employment counseling to managing government regulatory investigations to leading complex litigation. What sets us apart is our special emphasis on workplace challenges, our creativity in crafting positive solutions, and our passion for serving our clients’ interests.
Based on these trends, we predict substantial increases in the number of individual employee claims and government-backed investigations over the next several years. And, we expect that the hospitality industry will be a prime target. This is so because the hospitality industry touches virtually every person in the country in some way on a regular basis, and many hospitality employees are often young, transient, and looking for only temporary, part-time, or seasonal work. If your company works or contracts with the federal or a state government, an investigation or subpoena is even more likely. Hospitality companies should expect that it is a question of when—not if—they will become involved in some sort of investigation or litigation. So, what should you do to protect your company before and after the law comes calling?
Create a Paper Trail
An ounce of prevention is worth a pound of cure. The single greatest – and by far the most dangerous – pitfall for a company faced with a subpoena, government investigation, or litigation is incomplete record keeping or insufficient record retention. Even if a company has done everything right, it may nevertheless face substantial risk if it cannot prove it. It is, therefore, critical for companies and their corporate counsel to maintain detailed and accurate records of employee complaints, management and employee training, schedules, hourly rates, payroll and tips, and disciplinary action, among many other things. Without detailed records, companies could be facing an uphill battle in any investigation or litigation. Therefore, it is critical that companies create and maintain accurate records. Practicing good record retention is the best way to protect the bottom line.
Walk the Walk
Perhaps the most avoidable mistake a company may make that can lead to a lawsuit or government investigation is to ignore bad behavior or trivialize an employee or customer complaint. If an employee informs a supervisor that they have experienced sexual harassment or discrimination or they are concerned that they are being paid less than another employee for performing the same work: listen, investigate, document, follow up, and follow through. Following these simple steps is preventative as well as remedial. A company can avoid a lawsuit or investigation by taking appropriate action in response to a complaint, and an investigation is less likely to lead to liability if the company can prove that appropriate action was taken.
Lawyer Up
Successful companies have good relationships with their lawyers, particularly in the hospitality industry. A brief check-in with corporate or outside counsel on day-to-day issues can identify areas of risk and solve small problems before they become big headaches, all at a very low cost. And corporate counsel, when not familiar with particular areas of law or potential recent developments, should not be afraid to ask for help from outside counsel. Often, lawyers provide free updates or publications to their clients on changes in the legal landscape. And, when a lawsuit or investigation commences, having a trusted outside counsel that knows your company, understands your corporate policies and company atmosphere, and is invested in a long-term relationship can be a major benefit to your company and its bottom line.
]]>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.
]]>Earlier this year, a Texas teenager, who was the unfortunate victim of human sex trafficking, filed suit in Harris County Texas against several well-known hotel chains as well various truck stop operators and the website “Backpage.com,” which was alleged to advertise and promote illicit sexual encounters. All businesses named were sued under the theory that these entities profited from the illegal sexual exploitation of a minor. This suit, along with a similar lawsuit filed last year in Pennsylvania, provides yet another cautionary tale to the hospitality industrythat the specter of human trafficking at one of its facilities raises significant concerns of civil liability to both the owner and operators of those facilities.
According to the Texas complaint, “Jane Doe,” alleges that she was involuntarily thrust into the shadowy underworld of human trafficking just prior to her 16th birthday. The suit claims that she was instructed by her trafficker to rent a hotel room, or have her exploiter rent a room, using payment methods which did not provide any identification to the hotel, i.e., a pre-paid credit card or cash. Once inside the room, Jane Doe maintains that she was sexually exploited by a “constant flow of male customers.”
Despite the warning signs raised by pre-paid credit card or cash payment, the complaint alleges that hotel management and staff failed to intervene, contact the police or otherwise prevent the sexual exploitation of minors at their properties. Essentially, Jane Doe contends that her continued sexual exploitation was caused when hotel management “turned a blind eye to the plague of human trafficking and the sexual exploitation of minors at their locations.”
Jane Doe filed her complaint utilizing a Texas law which creates liability for individuals or entities that intentionally or knowingly benefit from participating in a human trafficking venture for damages arising from such trafficking. This statute mirrors the federal Victims of Trafficking and Violence and Protection Act (TVPA) which creates civil liability for various entities, including hotels, restaurants, casinos, and bars, which “knowingly” benefit from human trafficking if it can be demonstrated that they knew or should have known about the illegal venture.
Significantly, liability under the TVPA is not restricted to hotels. Rather, as noted above, a trafficking victim may bring an action against “whoever” knowingly benefits from participation in a venture that they knew or should have known involved sex trafficking. Accordingly, businesses such as restaurants, casinos, bars, and nightclubs must take heed of the potential consequences of ignoring the signs of human trafficking.
Lawsuits filed under the TVPA, or a state counterpart, are likely to cause the hospitality industry much consternation and concern simply because of the significant potential monetary exposure and public relations/reputational risk associated with having a brand connected to human trafficking. The question thus becomes: what is a hospitality related business to do in order to properly shield itself from potential liability?
Since the legal standard is whether the business knew or should have known that human trafficking was occurring in connection with its business, it puts the onus on the business to be self-aware of what is occurring on its property. It is, therefore, crucial that a comprehensive and thorough anti-trafficking compliance program be implemented, including but not limited to, training hotel management and people working in specific departments, such as security, housekeeping, and the front desk, to identify and report human trafficking when they suspect that the illegal activity is occurring in their workplace.
One state has already taken action to ensure that businesses in the hospitality industry have a heightened responsibility in self-policing their properties. In 2016, Connecticut became the first state to pass legislation mandating that all hotel workers receive anti-trafficking training. The training instructs workers on sex and labor trafficking, the legal responsibilities of lodging establishments and practical tools for identifying signs of sex and labor trafficking. The workers also learn how to deter traffickers, report suspected crimes and help victims connect with services. Although Connecticut was the first state to require mandatory training, it is anticipated that it will not be the last. In fact, there is currently a bill before the Florida legislature which would limit the liability for businesses that can demonstrate that they had training and protocols in place to identify trafficking.
The scourge of human trafficking is not going away and will, unfortunately, continue to be synonymous with the hospitality industry. Accordingly, it is imperative that members of the industry proactively engage in anti-trafficking compliance and training in order to combat exploitation and reduce potential civil liability.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
]]>Equally as troubling as the actual allegations of misconduct is the fact that these reports have pulled back the curtain to reveal organizational cultures that have often permitted the systemic and pervasive harassment to continue for years on end. Employers that have stuck their head in the sand about a toxic workplace environment could be forced to answer for their years of neglect both in the courtroom and in the court of public opinion.
The time is now to examine your organizational culture to ensure that you are not only providing a workplace free of harassment, but also a workplace culture that does not embolden your employees from carrying out unprofessional and hurtful behavior. The good news is that this is a fairly straightforward process, and we have boiled it down to a five-step plan that you can implement immediately. The bad news is that members of your organization might find it uncomfortable to address this situation and confront this sort of behavior. It is imperative, however, that human resources representatives, legal counsel, business owners, and managerial personnel take the lead and force your organization to adjust to this new reality without further delay.
Step One: Make Sure Your Policies Match Modern Standards
All too often, employers amend their handbooks to address developing legal and administrative changes (paid leave policies, for example, or shifting organizational structure), but will leave in place some of the tried-and-true policies that have served the company for years without thought of revision. If you haven’t updated your sexual harassment policy in the past several years, you might be behind the curve. Recent court decisions have placed greater responsibility on employers to establish policies that address sexual harassment in a more realistic and thoughtful manner.
At a minimum, your policy should clearly indicate that you have “zero tolerance” for sexual harassment in any form. You should clearly define the term and provide examples of conduct that would run afoul of your standards (including, for example, boorish behavior, off-color jokes, unsolicited hugs or shoulder rubs, sharing pornographic images, etc.) so that there is no confusion.
Your reporting policy should encourage employees to report their concerns about potential harassment immediately. You should also provide several avenues for the employee to provide their report, whether through their immediate manager, a human resources representative, another manager, or even a hotline number or intranet reporting mechanism.
Finally, your policy should clearly guarantee your workforce that they will not face retaliation as a result of their report. Providing this level of safety and security is important if you truly want to foster an open and respectful atmosphere.
Step Two: Disseminate Your Policies In A Thoughtful Way
Your policy is worthless if it sits on a shelf and is never accessed by your employees. You need to ensure that your workforce is aware of your position on sexual harassment if you want the policy to be effective. Most employers distribute the policy as part of the onboarding process and require new employees to sign an acknowledgment of receipt. And that’s a good start – but it’s just a start. You should take additional steps if you want the policy to truly become part of your workplace culture.
At the time of hire, a human resources representatives should take the time to specifically describe your harassment policy and start a conversation about your organization’s zero-tolerance philosophy. That lets the new employee know right out of the gate that you take this issue seriously. If your organization has an intranet, you should consider hosting the policy there permanently so that it can be readily accessed by anyone at any time. You should periodically provide copies of the policy as a standalone document to all of your employees to remind them of their rights and responsibilities. A good way to accomplish this is by having one of your highest level officials – if not the highest level executive – distribute the policy from their email account or via signed memorandum. By setting the tone from the top, your organization will send a signal to everyone that you take the subject matter seriously.
Step Three: Train Your Managers To Address Issues And Avoid Common Mistakes
Training your managers on your sexual harassment policy is a critical step. Your organization could be held automatically liable for any proven sexual harassment if carried about by a managerial employee, so all of your hard work in developing and disseminating your policy could be deemed irrelevant if your managers act inappropriately. You need to drill your policies into their minds on at least an annual basis through formal training sessions.
There are a few common mistakes to warn your managers about at these sessions. First, many companies get in trouble when managers ignore inappropriate behavior that they believe is “welcomed” by the victim, or if it appears to be part of a mutual and voluntary interaction. Your managers need to know that victims of harassment will often pretend to “go along” with the behavior for fear of losing their job, or simply because they want to appear to be part of the team, but that they will more than welcome managerial intervention that puts a stop to the conduct. Moreover, the conduct that your managers see out in the open, or hear about through the grapevine, is often just the tip of the iceberg, and it could signal that much worse behavior is taking place outside of your knowledge. For these reasons, your managers should be trained to address any behavior they witness or hear about, no matter if it appears that it is all in good fun and that no harm is occurring.
Second, it is common for some managers to allow extra leeway for certain employees because it is commonly accepted that their behavior is simply a harmless personal idiosyncrasy. Reports about misconduct or inappropriate behavior are met with a chuckle and a statement such as, “Oh, that’s just Harvey being Harvey!” It becomes commonly known around the workspace that you need to operate differently around that employee because they’ve been acting like that forever. “He likes to give hugs but he’s harmless,” or “Just don’t caught in his office one-on-one and you’ll be fine” are common sentiments in these workplaces. This is exactly the kind of attitude that leads to festering situations and that should be eradicated from your workplace. All employees should be held to the same standard, no matter how long their actions have been tolerated in the past.
Step Four: Promptly Investigate Any Issues Raised
Once you receive a report of sexual harassment, it’s time to take immediate action. If you delay your investigation until work slows down or until an important project is completed, you will send a signal to your workforce that this isn’t a priority. Moreover, you could face hostile questioning under oath in a subsequent lawsuit about what you were doing that was so important that it trumped the well-being of your workers. Therefore, you should clear the decks and do everything reasonably possible to make the investigation your highest priority.
Your human resources department should take the lead in the investigation, as they are trained to carry out an effective and legally compliant inquiry. There is no cookie-cutter approach to investigations because they are all unique depending on the circumstances, but there are some common threads that accompany a reasonable examination:
Step Five: Consistently Enforce Your Standards
Finally, and perhaps most importantly, you need to take action against the accused employee if the allegations against them are substantiated through your investigation. If your workforce figures out that your policy is toothless, they will lose respect for your organization and will feel dissuaded from reporting other misconduct. This could lead to legal trouble, but also to flagging morale and high turnover among your key contributors.
Your goal in meting out a response is to take action sufficient to ensure that the behavior is not reasonably likely to occur again. In some situations involving mild misconduct, it might be sufficient to give a documented verbal warning to the employee along with an acknowledged reminder of your sexual harassment policy. In more severe or reoccurring situations, the only reasonable possible response is termination. In between the two are a whole host of possible options, including written warnings, mandatory professionalism classes, behavioral improvement plans, suspensions, demotions, and the like.
Some employers run into trouble when they inconsistently apply standards to high-performing or high-ranking individuals accused of harassment. When push comes to shove, these organizations value the contributions these employees make to the company’s bottom line more than they value the ideals contained in the sexual harassment policy. There is no better way to hurt morale at your organization and neuter your harassment policies than to give a pass to a key executive accused of misconduct while coming down hard on a mid-level manager or hourly worker accused of similar behavior. On the other hand, your policy’s effectiveness will be given a boost if your workforce sees it applied in an evenhanded manner, no matter who is accused of a violation.
What Next?
You will soon receive additional guidance about how to prevent sexual harassment in the workplace from the Equal Employment Opportunity Commission (EEOC). In an instance of opportune timing, the Commission recently announced that it will soon release updated guidelines on the subject for the first time in over 20 years. Acting EEOC chair Victoria Lipnic acknowledged that “the update comes up at a time of burgeoning publicity for sexual harassment and assault in the workplace,” though she said the timing of the update was “purely coincidental.”
After several years of drafting and editing, which included incorporating public opinion on key issues, the Commission unanimously approved the new guidelines in early November. The draft guidelines are in the process of being reviewed by the Office of Management and Budget, and, once approved, will be released to the public. Fisher Phillips stands ready to analyze the new guidelines and provide additional recommendations once published, which is expected in the near future.
Conclusion
These are challenging times for employers. You are being asked to reexamine your organizational culture to ensure you are providing a safe and professional working environment for everyone in your service, and it’s not always easy to take an honest look at what has been created. However, going through this exercise will make your organization even stronger. Once you have addressed this situation and put into place an effective mechanism for addressing possible harassment claims, your workforce will be free to accomplish their mission without troubling distractions interfering with their jobs.
Authors
Jennifer Sandberg – Partner, Fisher & Phillips
Joseph Shelton – Partner, Fisher & Phillips
As sexual misbehavior, assault, and harassment in the workplace are front-of-mind, here are some steps employers should consider taking today:
The heightened focus on sexual harassment may unearth new allegations within the workplace. In those instances, employers who become aware of new allegations of sexual harassment should immediately:
These are just some of the most critical things to remember as employers contend with a potential increase in allegations of sexual misconduct and harassment in the workplace. Post & Schell can assist employers with all of the above measures – from helping to craft policies and training materials and training supervisory and non-supervisory personnel, to investigating or supporting internal investigators as they conduct investigations and handling any resulting litigation. If you have questions or concerns, please reach out to any member of the Firm’s Employment & Employee Relations Practice Group in our:
Philadelphia Office:
Sidney R. Steinberg (ssteinberg@postschell.com)
Andrea M. Kirshenbaum (akirshenbaum@postschell.com)
A. James Johnston (ajohnston@postschell.com)
Kate A. Kleba (kkleba@postschell.com)
Harrisburg Office:
Sarah C. Yerger (syerger@postschell.com)
Pittsburgh Office:
David E. Renner (drenner@postschell.com)
Disclaimer: This EFlash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this EFlash without first seeking the advice of counsel.
]]>MOSTLY HISPANIC KITCHEN STAFF
Mark Austin began working as a cook in the kitchen of Bonefish Grill in April 2015. He was one of two African-Americans working full-time in the kitchen. The other eight kitchen employees were all Hispanic. Kevin Rothery was the restaurant’s on-site manager. When Austin began working in Bonefish’s kitchen, he observed the Hispanic staff would routinely “rub, pinch or smack one another’s backsides as they moved past one another, massage one another’s shoulders and put their arms around one another.” The Hispanic staff also refused to answer Austin’s questions or assist him when he spoke in English. He reported these issues throughout the first few months of his employment without resolution.
A few months after beginning, Austin complained about the kitchen staff’s behavior in touching one another, claiming that both he and the other non-Hispanic employee felt “sexually harassed.” Rothery told Austin that he would “talk to the guys” about the harassment but the behavior did not stop. In fact, Austin’s co-workers began to “look at him and smile” while putting their hands into each other’s pants. Austin voiced his complaints to other managers throughout his employment. He found that “the more he complained, the more vulgar the kitchen staff would get.” He alleged that Rothery was not only aware of the behavior but was “present while the employees mimicked sexual acts.”
COMPLAINTS IGNORED
In September 2015, Austin put his complaints in writing, including the kitchen staff’s “inappropriate sexual games.” Rothery did not follow up on Austin’s written complaint. After Austin complained about a specific employee inappropriately pinching him, Rothery placed that particular employee directly next to Austin on the food prep line.
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]]>Some may be of the opinion one complaint of workplace harassment is not a big deal because it is not reflective of the entire workforce or the values of the company generally. While this may be true in some cases, it is important to investigate any such complaints because the root of the problem may be broader, such as poor workplace culture, weak management, and/or ineffective workplace policies restricting harassing behavior. The recent high-profile cases that have surfaced within just this last year – Uber and Fox News to name a few – serve as a reminder an employer’s workplace culture and actions in addressing complaints of workplace harassment can have a significant impact on employee perception and behavior, and reduce the potential for costly and damaging lawsuits.
Employers should be acutely aware that the modern-day workforce is becoming more diverse, which in turn requires greater tolerance, respect, and sensitivity when dealing with workplace issues, especially discrimination and harassment. For example, the workplace behavior highlighted in AMC’s hit series “Mad Men” – a modern day TV series depicting American business in the 1960’s – must be viewed as far from the norm in 2017. In fact, workplace decorum and culture today should be quite the opposite.
While managers and executives cannot be expected to know every single thing that occurs during the day-to-day operations of a company, it is critical that they hold employees accountable and maintain a professional workplace that is inclusive and respectful of all employees. Employers should have robust policies and procedures in place that expressly prohibit discrimination and harassment, and ensure that they are reinforced through strong leadership and educating employees. Such a workplace culture should limit the potential for a costly and damaging lawsuit as well as strengthen the company’s defenses against potential harassment claims, increase employee morale and productivity, and protect against unfavorable publicity that severely damages an employer’s reputation, or, in extreme cases, could force it to shut its doors.
Management, Leadership, and Workplace Culture
A company’s culture is the cornerstone to a positive workplace environment for all employees. The more congenial and inclusive a company’s work environment, the more productive its employees. In our experience, a positive workplace culture, is most effectively established through a top-down approach.
The behavior and actions of a company’s leadership should reflect the ideals of the company and serve as a guidepost that employees will ultimately follow. Employers need to have strong leaders that can translate their influence into productivity and enable employees’ success. Interactions between managers and their subordinates should reflect an employer’s values and commitment to providing a harassment-free work environment. Management should be trained to immediately respond to complaints when they are received, and should be cautioned against any appearance of retaliatory behavior in response.
Employers should be vigilant when making hiring decisions, particularly in regards to management who will positioned as the voice of a company, and resist the rush to fill a position quickly. To maintain a positive workplace culture, every single employee should be hired for reasons that are compatible with the company’s mission and values. The benefits of taking your time in hiring the right employee outweighs the costs of high turnover or a lawsuit.
Implement Effective Workplace Policies
Workplace discrimination and harassment can cost employers millions of dollars every year through low employee morale and productivity, and expensive lawsuits. Creating a positive workplace culture that is led and staffed by like-minded individuals can be further reinforced by strong policies and employee training.
The content of discrimination and harassment policies should clearly explain the kinds of conduct that are prohibited, explicitly announcing that the company does not permit and will not tolerate harassment or discrimination based on sex, race, color, religion, national origin, age, disability, citizenship, familial status, pregnancy, veteran status, genetic information and/or any other legally protected status provided under applicable state law. For example, the DC Human Rights Act makes discrimination and harassment illegal under 19 protected categories, including personal appearance, sexual orientation, and gender identity or expression.
Discrimination and harassment policies should also explain that they apply to acts committed by anyone in the workplace, including executives, managers, coworkers and non-employees, and that employees will not be retaliated against for reporting harassment. To further explain how the policy operates, employers should include definitions and examples of harassment, an explanation of an employee’s right to a workplace free of discrimination and harassment, a clear statement that the company has zero tolerance for such conduct, and an anti-retaliation provision related to reports of discrimination or harassment.
Finally, these policies should also clearly explain the complaint procedure and an employee’s duty to report harassment to the appropriate supervisor, upper level management, or Human Resource Officer, who is responsible for handling employee complaints. The reporting procedure should encourage employees to report complaints promptly, remove all potential obstacles from the reporting process by providing clear instruction on how to report alleged discrimination or harassment, provide several ways in which employees can make a report of harassment (i.e., if your harasser is your supervisor, contact Human Resources directly to complain), and reassure employees that the company will investigate the complaint diligently.
Harassment Training and Enforcing Harassment Policies
Placing a policy in a handbook is a necessary first step to disseminate anti-discrimination and harassment policies and limit the potential liability, however, policies are only effective to the extent that they are followed by employees and enforced by the employer. Therefore, it is equally important to provide appropriate training to employees and supervisors on the company’s discrimination and harassment policies and the reporting procedures.
In addition to detailing the content of an anti-discrimination and harassment policy and emphasizing the company’s expectations and workplace culture, training should provide a comprehensive overview of the procedures to report complaints of discrimination or harassment. Specific training on the roles and responsibilities of employees on how to report complaints of discrimination and harassment validates an employer’s commitment to enforcing its policy.
Similarly, as mentioned above, supervisors, Human Resource officers, and other company officers who handle and investigate employee complaints, should be trained on their responsibilities to enforce the policy. Supervisors are important to the reporting procedure because they are typically the first line of defense, and their actions can be a major factor for liability purposes. Therefore, training for supervisors and company officers responsible for handling employee complaints should emphasize their role in monitoring workplace behavior, upholding company values and workplace culture, and properly addressing employee complaints.
Training your workforce on your discrimination and harassment policy is also essential to defending harassment claims. The Supreme Court holdings in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) generally require employers to create and implement zero tolerance policies to prevent, deter and remedy complaints of harassment. Employers are automatically liable for a hostile work environment created by a supervisor if the harassment results in a tangible employment action, such as a demotion or termination. An employer also is liable for a supervisor’s actionable harassment even if no tangible employment action occurs, unless the employer can establish the affirmative defense developed in the aforementioned case law.
To establish the affirmative defense, employers must demonstrate that they have satisfied two elements:
However, even the best harassment policy and complaint procedure may not satisfy the affirmative defense if the employer fails to enforce its policy. Employers must ensure that the policies and procedures set forth in the employee handbook are consistently enforced throughout the company. This is, again, where comprehensive training plays an important role. Additionally, documenting the investigation, outcome, and any corrective action is important to demonstrate that the policy is followed. If the conclusion of the investigation is that harassing and/or discriminating conduct occurred, appropriate discipline should be applied to the offending party that aligns with the company policy.
Additionally, although Title VII does not specifically require that employers provide discrimination and harassment training, some states specifically require harassment training. For example, in California (Cal. Gov. Code § 12950.1) and Connecticut (Conn. Gen. Stat. § 46a-54(15)(B)), employers with 50+ employees must provide two hours of sexual harassment training to all supervisory employees within 6 months of being hired. Additionally, California law requires two hours of re-training on sexual harassment to supervisory employees every two years. Employers should consult applicable state law and ensure that they are following any specific state or local requirements when it comes to harassment and training your employees.
Conclusion
Ultimately, sexual harassment is still a very real problem in the modern-day workplace. Employers need to provide employees the appropriate channels to report harassment, free of retaliation, and make a commitment to upholding its zero-tolerance policy. Although creating effective policies and conducting employee training can be expensive, the cost of taking preventative measures to avoid exposure for claims of discrimination and harassment pales in comparison to the costs of defending a lawsuit and the damages that could be assessed. Finally, promoting and enforcing a workplace culture free of harassment will pay dividends in worker productivity. Given the recent string of news stories highlighting workplace harassment at major companies throughout the United States, there is no better time for employers to evaluate their workplace culture, and take the appropriate steps to ensure that employees and management alike are committed to promoting and upholding a positive workplace free of harassment.
]]>What is Unlawful “Hostile Workplace” Harassment?
Reduced to its simplest formula, “hostile workplace” unlawful harassment is conduct directed against an individual because of his or her membership in a protected class that causes the workplace to be “hostile” within the meaning of the law.2
How many instances of harassment, the types of conduct that will be considered harassing and at what point the working
environment will be considered legally “hostile” depend on a multitude of factors.
Explicitly racial jokes, sexual comments or expressed hostility toward a particular religion or ethnic background are rather easy to characterize as forbidden conduct, but other conduct can also lead to claims. Indeed, the offending conduct need not be “sexual” to give rise to a sexual harassment claim.
In one case arising out of a New Jersey workplace, a woman claimed that her co-workers, all male, went to great lengths to make her feel unwelcome and thus made the workplace “hostile.” The woman gave as one
example an incident in which all the men came into the office smoking cigars shortly after she mentioned that she was allergic to cigar smoke. The court ruled that that incident could be used as evidence of sexual harassment because the harassment was directed at the plaintiff because of her gender/sex.
The absence of any bright line identifying what conduct may be considered unlawful harassment is among the issues that make this subject challenging to address.
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