Sexual harassment: How to protect your employees, business

NEW YORK—With the numbers increasing behind the #MeToo and Time’s Up movements that are mobilizing against sexual harassment, the spotlight on such misconduct is growing more intense daily. And no industry is immune from getting caught in the glare. Allegations of sexual misconduct—from Hollywood to Washington, DC, and, indeed, across the globe—have surfaced, including within the hospitality industry. At press time, The Wall Street Journal reported dozens of people have accused Las Vegas casino and hotel mogul Steve Wynn of alleged sexual misconduct, to which the billionaire has responded: “The idea that I ever assaulted any woman is preposterous.”

The allegations have had swift ramifications. Wynn resigned as finance chair of the Republican National Committee, the Nevada Gaming Control Board—the state’s main casino regulator—is conducting an investigation, and the $2.5-billion Wynn Boston Harbor project in Everett, MA, reportedly may no longer carry his eponymous company’s name.

And all this has occurred without any action by a court, other than the court of public opinion. So, given the impact such allegations can have, the urgency of having distinct policies and procedures regarding the tinderbox of sexual harassment cannot be ignored.

Sexual harassment is not just confined to high-profile, celebrity industries; it can be found in any industry where humans share a work environment. Sometimes overt, sometimes subtle, alleged incidents can take many forms, including physical, emotional and attitudinal, and all levels of personnel, from those on the starting rung to those at the top rung of a career ladder, can be targets.

The hospitality industry, with its welcoming, people-centric ethos, has long been a magnet for ebullient go-getters and—like Hollywood—has created its own pantheon of celebrity hoteliers and chefs. News about alleged misconduct by personalities such as Mario Batali or Wynn gets the spotlight, but like agar in a petri dish, the industry’s characteristic working environment presents a potentially fertile field for misconduct to flourish.

And make no mistake; it’s illegal. Federal law forbids sexual harassment under Title VII of the Civil Rights Act of 1964.

So how can hoteliers get a grip on eliminating any inappropriate behavior? According to Adam Ochstein, founder/CEO of StratEx, a Chicago-based human-resources-focused consulting and software firm, one starting point is to eliminate any catalysts that may lead to questionable interactions.

Many complaints his company handles are not directly centered on sexual advances, he noted. “It’s innuendo, ‘locker-room’ talk and behavior, jokes, comments; it’s not so much touching as it is braggadocious and crass behavior,” he said.

He noted in operations like hotels that are going 24/7, long, often stressed-filled hours help build camaraderie among staff members, who sometimes find themselves together and bonding further in after-work situations. “We’re dealing with people [in hospitality] who, by nature, are very social, and it’s very easy to potentially cross boundaries and lines when a) alcohol is involved and b) you’re tired or wired after working a full, late-night shift. If I’m a hotel operator, if I’m a restaurateur, my concern is what’s going on when HR isn’t around,” he said.

Attorney Heather Yanak, co-founder/CEO of Houston, TX-based B3OND, a newly launched enterprise that utilizes customized surveys to determine and discover sexual-harassment issues in companies, characterized the level of sexual harassment in the hospitality industry as “extremely high. It’s very high because it’s something that has gone unchecked for so long.”

Yanak observed that industry players are not necessarily proactive when it comes to the issue of sexual harassment. “The mentality is still a reactive one, so they come to us after there’s already been an incident,” she said. “This is something that does not need to be a fire drill; they can get ahead of this.”

The CEO said she is beginning to see a shift in attitude as more and more alleged incidents come to light in hospitality. “They’re thinking: ‘I don’t want to be the next surprise and have this absolutely wipe out our organization, our share prices, the return to the investors and we have to close down.’”

In the 15 years he’s been helming StratEx, Ochstein has encountered a variety of complaints and situations, from sex in a meat locker in a kitchen, to a housekeeper being pulled into a room by another worker with apparent inappropriate intent, to guest-on-staff misconduct, the latter, he stressed, for which a hotelier may be liable.

Yanak agreed that incidents revolve not only around in-house misconduct, but inappropriate behavior on the part of guests.

“Recently, the maids in Las Vegas have asked for ‘panic buttons’ to go into the rooms. So it’s compounded. The hospitality industry really needs to start addressing this and get ahead of this and protect their workers and their safety. Whether your manager commits the offense or it’s done by a guest on your property, it’s still a liability for your organization,” she said.

Last month, lawmakers in California introduced legislation that would require hotels to provide housekeepers with these “panic buttons” as a foil against assaults and sexual harassment, measures also seen in Chicago and Seattle.

Chris Holbert, CEO of SecuraTrac, a firm providing this type of device, indicated he has had inquiries from hoteliers, although none wanted to be publicly identified.

“Sexual harassment and physical attacks in the workplace are top of mind in industries like hospitality where employees can often be isolated and at risk for volatile run-ins with customers and guests,” said Holbert. “We have spoken with three large hotel chains about the issue and the need for a technology solution that can enable employees to immediately notify security and managers when a situation occurs. Not providing employees with a way to call for help besides a room phone or yelling down the hall increases the daily risk to employees.” He added investing in this type of technology can “create a safer workplace, make employees feel more valued and protected at work…and in some cases, reduce corporate liability premiums. Happy, safe workers will lead to an improved guest experience.”

With that in mind, one of the most perplexing things Ochstein has run into in the past had nothing to do with illicit acts; it was the reaction by some owners and management to putting programs in place that would educate employees about sexual harassment.

“This is not an absolute statement, but they [owners/managers] are not in the dark about what’s going on. Every time one of our HR consultants historically has broached the subject with a new or existing client to do a review of training for [them] and their staff on workplace harassment—I’m talking non-California, where it’s required—the typical response was: ‘I don’t want to train my employees because if I train them, then I’m educating them how they can come after us (i.e., legal action) because I know this stuff is going on.’”

Yanak noted many employees are still unclear as to what particularly constitutes sexual harassment and don’t feel they have anyone trustworthy—even in human resources—they can speak to about it. “In the hospitality industry, something that we hear frequently is, ‘My organization cares more about its customers than it does about its employees. So, employees just feel it’s futile to bring it up and therefore they don’t; and it just persists—and persists and persist and persists—until it blows up… These are the kinds of things that snowball.”

“And” said Caroline Starry, B3OND’s director of business development & communications, “Because it’s such a customer-driven situation with the idea that the customer’s always right, I’m sure that plays into it a lot more than in just a typical, traditional corporate environment.”

Ochstein believes, however, the corporate pendulum on sexual harassment is beginning to swing in the opposite direction. “They’re coming to us saying, ‘Please, please come out and educate my managers, my staff, on protocols and what the process is. We’re also being brought in by HR. Sometimes, [a company’s/property’s] internal HR feels it’s not taken seriously unless it pays an outside consultant to come in and deliver the training… We’re also being brought in by those who don’t have HR. And we’re being asked to triage—can the employee call us?—if there is some alleged harassment,” said Ochstein, noting the answer to that is yes.

One resource cited that can be readily implemented is a “safe-harbor” 800-number where any employee can report incidents of alleged sexual harassment without fear of repercussion. “You want to create as many avenues as possible for employees to understand [such behavior] is not tolerated,” he said.

As in California, for example, where state law requires employers with 50 or more employees to provide supervisory employees with two hours of interactive sexual-harassment training and education every two years, some permutation of which Ochstein sees eventually going nationwide.

While it currently doesn’t have statistics around sexual harassment in the lodging industry, the national American Hotel & Lodging Association (AHLA) is involved in a variety of efforts around the issue, according to Rosanna Maietta, SVP of communications and public relations. “The hotel and lodging industry has made the safety of both employees and guests a top priority. For this reason, our properties have safety standards in place, our employees receive comprehensive and ongoing trainings, and AHLA has partnered with nationally recognized nonprofits and developed tailored trainings for the industry,” she said.

“As headlines over recent months have shown, no industry is immune to dealing with sexual harassment,” she continued. “Our industry has in place procedures and protocols for employees around reporting and prevention, and these are continuously reviewed and updated. As an industry, we will continue our work, day in and day out, with a focus on ensuring America’s hotels are secure places for all those who work and visit them.”

Ochstein said the first thing he always recommends is clients have EPLI—employment practices liability insurance, “which is just for these exact things,” he said. “And [if there’s an alleged incident] they need to contact their underwriter or carrier and let them know there’s a potential case, because if their EPLI underwriter isn’t notified at the beginning, they’re not going to pay out any claim if there is a case… When it comes to HR policies and employment law, common sense isn’t always the right answer. You might think something is the right thing to do, but seek out legal expertise if you have any ambiguity about what to do,” said Ochstein.

For its part, B3OND’s surveys seek to ascertain potential or existing issues.

The surveys are based on six agreement categories ranging from strongly agree to strongly disagree as responses to a series of 20 or fewer simple questions designed to be understood by anyone with a fourth-grade reading level, and target a variety of industries, notably hospitality, technology and entertainment.

“These are business categories receiving a disproportionate amount of media attention for being sexual-harassment hot spots with the misbehavior often very much entwined with accepted business culture,” said B3OND Co-Founder/VP of Data and Analytics Tracy David Bradley.

The email surveys are distributed across all employee levels, including to those without a corporate email (B3OND secures personal emails in these instances).

“A differentiator for our survey is it’s multilingual and it’s available on any device,” said Yanak.

Employees are given two weeks to complete the survey after which the data is compiled and analyzed. “We then come back to the organization with their top three risks and the top three recommendations for mitigating those risks,” said Yanak. “It’s a succinct action plan.”

Depending on what next steps an organization wants to take, B3OND can customize a plan and training that works for a particular hospitality environment “to ensure the message is being disseminated and being understood,” said Yanak.

Ochstein acknowledged that determining sexual harassment claims is a multi-prong effort. “We do a thorough interview of anyone who is involved, from the alleged perpetrator to the alleged victim to witnesses, seeing if there’s any pattern of involvement. We interview anyone who was on the shift at the time,” he said.

He readily admitted there’s no easy way to conduct such multi-person interviews in that—like many of the alleged incidents in the news—once allegations have been made, a person is judged. The CEO said that in some cases, an investigation could reveal an act was consensual or that someone might have a vendetta against a manager or employee. “It’s really hard for someone [accused] to recover internally from that,” said Ochstein.

“I think if 2017 was the year of MeToo and safe harbor to come out [about alleged sexual harassment], 2018 is going to be the year of a lot of…guilty-until-proven-innocent,” he said. “The pendulum is going to swing such that employers say, ‘I’m going to just let this person go; this is a cancer and I’m just going to get rid of it. I’ll maybe go through a cursory interview and investigation, but if there’s any sense of any ambiguity or any he said, she said, it’s going to be she said is all that matters and he’s gone. Or vice versa (as well as same-sex alleged harassment).’”

Pushback against allegations and “knee-jerk firings” may be the next phase, Ochstein indicated, which also should be on hoteliers’ radar.

“Individuals may start to file counter-claims with attorneys stating, ‘I was wrongfully let go. It wasn’t handled properly. There’s character defamation… It’s going to get ugly,” he predicted. “You’d better be preemptive.” HB