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Are Hospitality Employees Facing A Harassment Pandemic?

12.30.20

The coronavirus economy has brought many unforeseen challenges for the hospitality sector, one of which seems to be an increase in harassing conduct directed at service workers by patrons. According to a recent study by the nonprofit organization One Fair Wage, 41% of the 1,675 service workers surveyed reported they are sexually harassed more often now than they were before the pandemic. Many also reported being harassed for enforcing coronavirus restrictions.   

Even though harassment by customers has been a longstanding challenge for restaurateurs, the rise in sexual misconduct during the pandemic was unexpected. So too is the form the conduct is taking according to the survey. Female respondents in the One Fair Wage survey reported that it was common for customers to ask them to take off their mask – to see a pretty face, for example. One theory for the increase is that employees who are already compromised by limited earning potential are reluctant to speak up. Likewise, employers struggling to survive may be reluctant to confront customers who may be out of line.

Harassment Remains A Challenge For Employers – Especially When Initiated By Patrons

While pandemic-related issues likely will continue to dominant the news, harassment related issues will likely continue to be a major issue. In 2019, on the heels of the #MeToo movement, employers paid out a record $68.2 million to employees alleging sexual harassment violations through the EEOC, shattering the record by over $10 million. That is an increase from the previous all-time high set of $56.6 million in 2018 and is nearly double the total from just five years previous ($35 million in 2014). The EEOC’s 2020 statistics (expected early in 2021) will give us an insight into how the pandemic affected sexual harassment claims. 

This combination of factors creates enhanced risks for employers that do not understand or do not enforce their legal obligations. Federal and state laws require employers to take reasonable steps to prevent unlawful harassment. Many employers concentrate on taking steps to protect employees from harassment by co-workers and managers, but often overlook the need to focus on addressing the conduct of their customers.

While an employer is not automatically liable for a third party’s harassment of an employee, you can be held liable if you are negligent or reckless in preventing or responding to such harassment. If you suspect a customer is harassing an employee or your employee reports harassment, a prompt, thorough well-documented investigation, followed by aggressive action to prevent further harassment, is critical. Below, this article sets out steps to implement an effective response.  

Employers Need To Adjust Your Protocols To Address Pandemic-Related Harassment

Employers should also take steps to protect their front-line workers from harassment when enforcing coronavirus protocols. While such harassment may not necessarily present a legal liability in most situations, most employees are ill-equipped or not empowered to handle customer confrontations.  

The One Fair Wage survey revealed many workers who had run-ins with customers about mask and social distancing requirements. When your servers and bartenders rely on tips for much of their income, these confrontations can cost them real money. Train your workers on how to respond to customers’ demands or resistance and have a manager intervene – early on – to protect the employee from retribution by the customer.

The best plan is to be proactive. Your managers are on the frontlines of preventing harassment, discrimination, and retaliation from occurring in the workplace. They are in the best position to spot warning signs that harassment may be occurring, and they are most likely to be the first person an employee confides in with a complaint. Thus, it is critical that managers are equipped to stop harassment and any future harassment lawsuits in their tracks. 

5-Step Plan To Prevent Harassment

Here are five steps for hospitality sector managers to help protect employees and your business. 

Step 1: Know the Policy

A well-crafted anti-harassment policy will have zero-tolerance policy all forms of unlawful harassment, discrimination, and retaliation based on any protected category. The term “zero tolerance” should not be taken lightly and managers must be prepared to spot harassment, and act swiftly and appropriately to address it.   Managers must know that your anti-harassment policy encourages complaints and includes several avenues for employees to make complaints. 

Step 2: Look for Warning Signs

If a manager notices an employee’s diminished participation in group activities, strong dislike for or avoidance of certain customers or co-workers, decreased work performance, attendance problems, and/or an increase in stress-related health issues, they should check in with that employee to see if there are any issues that the manager can address. Do not ignore conduct that appears “welcomed” or “voluntary.” Your employees may not feel empowered to address bad behavior and feel pressured to just “go along.”

Step 3: Managers Are Always Leaders

Managers are never off-duty, even away from work. Managers must model good behavior while on the job, in their emailing, text messaging, social media presence, and at after-hours events. Managers play a large role in the development of company culture and set the right tone for a workplace environment that does not tolerate a culture of harassment. Remind managers not to gossip or bad-mouth others and to practice acceptance and inclusion.

Step 4: Handle Complaints

When a manager receives a complaint, they must take immediate action. Delays could send the wrong signal and could be exploited in a subsequent legal proceeding. Managers should listen to complaints carefully and impartially. They should assure the complaining employee that they will take the complaint seriously and that the employee will not be retaliated against for coming forward. They should conclude by telling the employee that they will protect the employee’s privacy to the extent possible but that they must report the situation to human resources or ownership. There can never be an “off-the-record” discussion; it cannot be “just between the two of them.”

Step 5: Contact Human Resources or Ownership

Managers must always and immediately report any potential violations of the anti-harassment, discrimination, and retaliation policy to Human Resources, or ownership.

Conclusion 

The pandemic has brought new challenges for you and your employees. The One Fair Wage survey revealed what we all know – your frontline workers have seen diminished wages and increased health-related fears. While you cannot solve all those new concerns, hospitality leadership can re-commit to protecting employees from harassment by customers and those whom your workers rely on for their paychecks.

Attorneys

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