Sexual Harassment in the Workplace

sexual harassment form

A hospitality employer's guide to create and maintain a workplace free from sexual harassment.

By Brett Owens

The hospitality industry is particularly vulnerable to claims of sexual harassment because of a number of factors, including high employee turnover and the frequency of interactions between employees during their shifts. In fact, service-sector workers have filed more than one-fourth of the sexual harassment charges in the past 10 years. Additionally, nearly 37 percent of all sexual harassment claims filed with the Equal Employment Opportunity Commission (EEOC) arise from the restaurant industry.

Employers in this industry not only have a legal obligation to maintain a workplace that is free of sexual harassment, but also should be motivated to create an environment where every employee and customer feels safe and respected. The failure to provide a harassment-free workplace may result in legal claims and can lead to a decline in productivity, employee morale and damage to a company’s reputation.

Ultimately, every employer needs to demonstrate that they have procedures in place to prevent and respond to complaints of sexual harassment, whether they come from guests or co-workers. Adequate remedial action must occur upon receiving notice of potential sexual harassment in the workplace.

According to EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:

* A clear explanation of prohibited conduct;

* Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;

* A clearly described complaint process that provides accessible avenues of complaint;

* Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

* A complaint process that provides a prompt, thorough and impartial investigation; and

* Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Policy Acknowledgement

Hotel owners, for example, may hire seasonal workers during specific months where they are at their busiest. Accordingly, it is vital that every new bellhop, chambermaid or front desk clerk, regardless of his or her date of employment, reviews and acknowledges receipt of the sexual harassment policy.

From the onset of employment it should be made clear to every employee that sexual harassment is unacceptable in the workplace and that the company does not retaliate against anyone who notifies the company of potential harassment. This can be done, in part, by providing the sexual harassment policy to everyone from room service managers to the busboys; from tennis pros at a resort to the gift shop attendant at the clubhouse; from kitchen managers, chefs and sous-chefs to dishwashers at orientation.

sexual harassment paperEach employee should acknowledge in writing that he or she has reviewed and understands the sexual harassment policy, which is identical for everyone, regardless of title, length of employment or salary. It is imperative to stress that all employees exercise good judgment to avoid engaging in conduct that may be perceived as harassment.

A policy that is not implemented through communication, education, training, and consistent enforcement is ineffective. Owners of restaurants, hotels, convention centers and leisure services must place an emphasis on properly training managers and supervisors to be certain they can identify behavior that violates company policy and reinforce that sexual harassment will not be tolerated. Additionally, every job description for managers and supervisors should include requirements regarding knowledge and proper enforcement of the anti-harassment policies and procedures, and caution that nonemployees such as customers, diners and guests can also create a hostile work environment for employees.

Safe Environment

It is valuable to create an environment where employees are encouraged to report harassment before it becomes severe or pervasive. An employer’s harassment complaint procedure should also be designed to encourage victims to come forward without fear of retaliation. It is incumbent for employers to clearly explain the complaint process and ensure that there are no unreasonable obstacles for complaints. For example, employers are obligated to investigate allegations regardless of whether the complaint conforms to a particular format or is made in writing.

The complaint process is not effective if employees are required to complain to their supervisors about alleged harassment. For instance, if a waiter is making lewd remarks about a waitress, she may be reluctant to report his behavior to their direct supervisor who is also a man because she knows there is a friendship between the two. Further, this short-sided approach is problematic because the supervisor may be the harasser.

The hospitality industry has many levels of management, which could impede the process of investigating allegations. Thus, it is essential to set up procedures for a prompt, thorough and impartial investigation. Employers must assess the accusation and determine whether a detailed fact-finding investigation is necessary. For example, if the alleged waiter who has been making lewd comments and repeated unwanted advances to his waitress colleague does not deny the accusation, there is no need to interview witnesses and the employer could immediately determine appropriate corrective action.

A fact-finding investigation, if deemed necessary, should be initiated immediately. In the case of the waiter harassing the waitress, the restaurant manager may need to take intermediate measures before completing the investigation to ensure that further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties, transferring the alleged harasser to a different location or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

The individual making the complaint should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation and could have a chilling effect on victims of harassment coming forward. It is also important to keep the complainant apprised of the status of the investigation and ensure that he or she can contact an appropriate member of management at any time to answer questions or concerns. This is vital in the hospitality industry because a complainant may work shifts at night and human resources staff may not be available to address the concerns that may surface during a particular shift.

Whomever conducts the investigation must be objective, consider the relevant facts and be thoroughly trained to interview witnesses and evaluate credibility. Additionally, the alleged harasser cannot have supervisory authority over the individual who conducts the investigation or have any control over the investigation. In short, by drafting effective policies, providing training and creating a culture to encourage the reporting of potential harassment, hospitality employers can mitigate their risk of legal claims that hinder their ability to maintain their workforce and create an environment to provide top flight service to their customers.

Brett Owens is an associate attorney in the Tampa office of Fisher Phillips. The national labor and employment law firm is committed to providing practical business solutions for employers’ workplace legal problems. For tips on managing workplace issues, visit www.FisherPhillips.com. You may reach Mr. Owens at (813) 769-7500 or bowens@fisherphillips.com.

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