Investigating Sexual Harassment Claims: A Guide for Hospitality Employers
By Marc Stephen Shuster, Partner, Berger Singerman
Co-authored by Laurie Weinstein, a member of Berger Singerman's Dispute Resolution Team
Approximately 90% of women in restaurant jobs who depend on tips have asserted that they have been sexually harassed at the workplace, according to findings published by the Restaurant Opportunities Center United and Forward Together in October 2014. Recent reports in the media about hotel housekeepers who may have been sexually assaulted and harassed by guests show that this problem likely exists in the hotel industry too. Although some of these claims may not prove to be true, this point is clear: the failure to properly address sexual harassment complaints may render an employer liable for significant damages to a prevailing employee, including the employee's attorneys' fees and costs. Furthermore, mismanaging sexual harassment claims can also result in negative publicity, loss of productivity and morale, and higher turnover rates.
Once an employee has complained of sexual harassment, an internal investigation is necessary to address and resolve the claim. This article describes best practices to take when conducting an internal investigation of a sexual harassment claim.
Who Should Investigate the Sexual Harassment Claim?
The individual who conducts the investigation must be impartial to the complaining employee, the alleged harasser, and any witnesses. Importantly, the investigator should not be subordinate to the alleged harasser. In a similar vein, the investigator should not have a social friendship with the alleged harasser.
Hiring an outside and independent investigator is not necessary but might be wise. If an employer hires an outside investigator, it may dissuade the complaining employee or the alleged harasser from later claiming that the investigation was biased or incomplete. The witnesses may be more forthcoming if an outsider investigates, as opposed to someone within the company. Also, if an outside attorney is hired and performs the investigation, an employer may be able to prevent certain documents or discussions from being later disclosed if the employee files a lawsuit.
When Should the Investigation be Conducted?
The investigator should interview the complaining employee immediately after a complaint is made. Documenting the complaining employee's side of the story immediately after the incident can be very important for an employer to defend against a differing version that might be told in deposition or in court. Investigating immediately will also show the complaining employee that their employer cares and treats complaints seriously.
While a claim is being investigated, an employer may want to take measures to prevent further contact between the parties to avoid opportunity for further alleged harassment. This may include changing work schedules or placing the alleged harasser on leave.
Best Practices During the Investigation
The investigator should interview the complaining employee, the alleged harasser, and anyone else who may have relevant information. The investigator should ask the complaining employee what exactly was said or done; how often the unlawful conduct occurred and over what period of time; how the employee reacted to the alleged sexual harassment; whether the employee complained about the conduct pursuant to company policy; whether there are any witnesses or relevant documents; whether and how the employee was affected, including whether they have sought medical treatment; and whether the employee's job or job performance has been affected.
The investigator should also obtain the alleged harasser's side of the story. The investigator should ask for the alleged harasser's response to the claims and - assuming the alleged harasser denies the claims - ask why the complaining employee might make up such claims. The investigator should also interview third party witnesses who may have relevant information. This may include customers of the restaurant or hotel. Additionally, video surveillance of the hotel or restaurant may contain information relevant to the sexual harassment claim and investigation. If the employer has relevant electronically stored information, such as video surveillance, the employer should make a copy of the information or ensure that it will not be deleted.
When interviewing witnesses, the investigator should state that the employer does not tolerate unlawful conduct and will not retaliate against any employee who complains of sexual harassment or participates in an investigation. Social media may also have relevant information, such as whether the complaining employee has a social friendship with any of the alleged witnesses. There may also be information about the employee's relationship with the alleged harasser, and whether the alleged conduct was unwelcome or consensual. The investigator should be mindful of the employees' privacy rights and review any relevant company policies regarding the employer's access to an employee's social media posts.
The investigator should weigh the credibility of each person interviewed, and explain to the employer how the investigator evaluated each person's credibility. For example, the investigator should note an individual's demeanor, whether the individual's version of what happened is contradicted or corroborated by other witnesses or documents, and any history of prior similar complaints.
Best Practices After the Investigation
After the investigator has gathered, reviewed, and considered the relevant facts, company management should determine whether unlawful conduct occurred. If it is determined that sexual harassment has occurred, the employer should take immediate remedial action. Depending on the severity and frequency of the unlawful conduct, appropriate measures may include training and counseling, changing an employee's work schedule, monitoring to ensure the harassment stops, warnings, demotion, or termination. When determining the appropriate remedial measures to take, management should remember that the employer could be liable if the unlawful conduct does not stop. Remedial measures may also be implemented to put the employee in the position that they would have had if the unlawful conduct had not occurred.
The complaining party and the alleged harasser should be immediately informed of management's determination and of any remedial measures that will be taken. Being told the conclusion and outcome of an investigation gives the complaining employee a sense of closure and a feeling that the employer took the complaint seriously - which may in turn result in fewer lawsuits. There are times when an employer may not be able to determine if unlawful conduct occurred. Nonetheless, the employer should implement remedial measures, such as training and monitoring.
Avoiding Future Sexual Harassment Claims
Addressing sexual harassment at the workplace before a lawsuit is filed allows an employer to resolve problems early and establish good will, and may result in the employee deciding not to sue their employer. In situations where an employee files a lawsuit, the employer who proactively addresses sexual harassment problems at the workplace may be able to raise certain defenses, resulting in less damages and attorneys' fees. For instance, an employer may be liable for a supervisor's sexual harassment if it resulted in a hostile work environment. An employer may be able to defend against this liability under what is commonly known as the Faragher-Ellerth defense. This defense requires an employer to show that:
(i) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
(ii) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
One of the most important ways an employer can show that it exercised reasonable care to prevent and correct promptly any sexually behavior is to implement, and widely distribute to employees, an effective anti-harassment policy. The policy should include the following information:
- An effective and fair procedure for an employee to lodge a complaint;
- The employer takes seriously all complaints of unlawful conduct and will investigate complaints promptly;
- The employer will not retaliate, or take an unlawful adverse action, against any employee who makes a sexual harassment complaint or participates in an investigation of a complaint;
- The employer will take any necessary remedial action to end sexual harassment; and
- The identity (by name or title) of the individual to whom harassment should be reported. The policy should also identify an alternative person to whom harassment may be reported, so that an employee is not required to report harassment to the alleged harasser.
Supervisors should be trained to immediately address any complaint of harassment, no matter how casual the complaint. If an employee asks to keep the complaint confidential, the supervisor should give the complaining employee assurances that the company will do everything it can to keep the complaint confidential to the extent practical.
In conclusion, restaurants and hotels must remain aware of their responsibilities to prevent, address and end instances of sexual harassment at the workplace. This article describes best practices to consider when investigating claims of sexual harassment. Many of the best practices described in this article are applicable to addressing other workplace complaints, including discrimination, retaliation, and workplace violence.
Laurie Weinstein co-authored this article. Ms. Weinstein is a member of Berger Singerman's Dispute Resolution Team and focuses her practice on labor and employment litigation and day-to-day counseling on compliance issues. Her labor and employment experience includes defending companies and executives in connection with claims of employment discrimination, misappropriation of trade secrets, and violations of the Florida Whistleblower's Act and the Fair Labor Standards Act. Ms. Weinstein also has experience litigating a wide range of complex commercial disputes, including breach of contract claims, shareholder and partnership disputes, and tortious interference claims. She has litigated in state and federal courts throughout Florida. She has also practiced in various arbitration forums and before administrative agencies, including the U.S. Equal Employment Opportunity Commission. Ms. Weinstein was listed by Florida Trend Magazine as and "Up & Comer" in their Legal Elite. She received her J.D. and undergraduate degrees from the University of Florida. She can be reached at (954) 712-5165 or email@example.com.
Marc Stephen Shuster is a partner in the Miami office of Berger Singerman, Florida’s business law firm. Mr. Shuster is a business attorney with extensive experience in commercial real estate transactions, both healthy and distressed, and corporate M&A deal work, with an emphasis on the hotel and hospitality industry. He advises both traditional hospitality conglomerates and Internet advertising sites serving the industry. Mr. Shuster he has served as counsel to a Florida-based emergency management/services conglomerate in negotiating for disaster relief work throughout the Caribbean. Mr. Shuster speaks and writes on novel issues affecting the hotel and hospitality space, serves on various community boards, and has been recognized with numerous awards and accolades. Mr. Shuster can be contacted at 305-982-4080 or firstname.lastname@example.org Extended Bio...
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