Chicago City Council Committee Approves Hands Off-Pants On Ordinance to Protect Hotel Employees

On October 2, 2017, the Chicago City Council Committee on Workplace Development and Audit approved an amendment to the Municipal Code (the “Ordinance”) that, if approved by the full City Council, will require hotel employers to equip hotel employees assigned to work in guestrooms or restrooms with portable emergency contact devices and develop and implement new anti-sexual harassment policies and procedures. The Ordinance is in response to multiple reports of sexual assault and harassment targeted at hotel employees by hotel guests.

The Ordinance in its current form will require hotel employers to (1) equip employees who are assigned to work in a guest room or restroom, under circumstances where no other employee is present in the room, with a panic button (at no cost to the employee) which the employee may use to summon help from other hotel staff if s/he reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence; (2) develop, maintain and comply with a written anti-sexual harassment policy to protect employees against sexual assault and sexual harassment by guests; and (3) provide all employees with a current copy of the hotel’s anti-sexual harassment policy, and post the policy in conspicuous places in areas of the hotel where employees can reasonably be expected to see it.

With respect to the anti-sexual harassment policy mandates, employers must develop a policy that:

  • Encourages employees to immediately report to the employer instances of alleged sexual assault and sexual harassment by guests;
  • Describes the procedures that the complaining employee and employer shall follow in such cases;
  • Affords the complaining employee the right to cease work and leave the immediate area where danger is perceived until such time that hotel security or the police arrive to provide assistance;
  • Affords the complaining employee the right, during the duration of the offending guest’s stay at the hotel, to be assigned to work on a different floor or at a different station or work area away from the offending guest;
  • Provides the complaining employee with sufficient paid time to (a) file a complaint with the police against the offending guest, and (b) testify as a witness at any legal proceeding that may ensue as a result of such complaint;
  • Informs the employee that the Illinois Human Rights Act and Chicago Human Rights Ordinance provide additional protections against sexual harassment in the workplace; and
  • Informs the employee that it is unlawful for an employer to retaliate against any employee who reasonably uses a panic button or exercises any right under the Ordinance.

Employers in violation of the Ordinance would be subject to a fine between $250-$500 for each offense, and each day that a violation continues constitutes a separate and distinct offense.

Consequently, it is critical that Chicago hotel employers monitor the status of this Ordinance, which is now pending before the full City Council. If passed and signed into law, the Ordinance will take effect within 90 days of signature. Employers should consider preparations for providing panic buttons to those employees protected by the Ordinance and training hotel employees on their use, and revisiting anti-sexual harassment policies, whether stand-alone or included in employee handbooks, to ensure compliance with the Ordinance’s mandates. Additionally, employers should consider providing updated anti-sexual harassment and anti-retaliation training to all employees, including those who are assigned to work in guest rooms or restrooms, to ensure that all employees fully understand their employer’s policies and procedures.

This post was written by Shawn D. Fabian & Michael J. Roth of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
For more legal analysis go to The National Law Review

Five Lessons from FOX News and Trump on Sexual Harassment

Donald Trump Fox NewsThe recent accusations of sexual harassment against Roger Ailes at Fox News, and the response of a high-profile candidate for public office about how women should respond to sexual harassment have crystallized into an opportunity to learn from the mistakes of others.

Since the mid-1980s, we’ve all read about sexual harassment and been trained on it. For the last 25 years, I’ve studied it, investigated it, seen it, taught about it, warned about it, developed policies to guard against it, and defended companies accused of it. Here are a few lessons from these recent events:

A Quick Review

If you’ve avoided (whether by choice or by luck) these last few news cycles, former Fox News anchor Gretchen Carlson accused former Fox News Chairman and CEO Roger Ailes of sexual harassment. After an outside investigation and multiple women providing more examples of his alleged slimy behavior, Ailes is now gone. It happened quickly.

Then, in responding to questions about sexual harassment, a high-profile office-seeker went on record saying he hopes his daughter would quit if she were sexually harassed—and seek another career—which is, by all accounts, an impossibly unrealistic option for most women. Another family member, jumping on the grenade, made it worse when he tried to explain that what his dad actually meant was that a “strong” woman would not allow such sexual harassment to continue – implying (whether intentionally or not) either that strong women could control it, or would have the power to find other work.

Enough already. Sexual harassment is personal; it’s sensitive, and it’s complicated.

Five Quick Lessons

  • Lesson 1: Sexual harassment comes in many forms.

In 1986, 30 years ago, the U.S. Supreme Court determined that sexual harassment is a form of sex discrimination. Today, the law recognizes harassment that includes female-on-male, male-on-male, female-on-female, but most often we see the male-on-female harassment. Still.

  • Lesson 2: Most women don’t want to complain about it. Period.

Since the 90s, the research has repeatedly shown that complaining is the leastlikely response from women who were harassed. The more likely responses include (1) avoiding the harasser; (2) downplaying the gravity of it; (3) ignoring it; and (4) taking it head-on.

The EEOC’s recently released Select Task Force Report on the Study of Harassment in the Workplace explains in more detail that most women who are victims of harassment don’t ever complain about it. They just want to fly under the radar. There are a lot of reasons, but that’s for a much longer article in a different format. In sum, usually, it takes courage to complain.

  • Lesson 3: Know when to bring in outsiders.

Fox News did the right thing by bringing in an outside investigator—reportedly an outside law firm—to investigate the Carlson allegations. When the accused is in a position of power (like Ailes), such that other employees might be afraid to tell what they’ve actually experienced or seen, an internal investigator is usually not enough. An outside neutral has no attachment to the accused or accuser, and the results—whatever they are—in most cases, are more likely to be more thorough, more revealing, and more trusted.

Importantly, with an outside law firm as an investigator, you also have more opportunities to protect communications, advice, and other developments under the attorney-client privilege. That process must be carefully handled.

  • Lesson 4: Confidentiality is critical.

When employees report harassment, the law compels employers to investigate. We know investigations can be messy and trigger unexpected consequences. Practically, it makes sense to protect those who complain and those about whom complaints are made. Some sexual harassment (like the allegations against Ailes) is severe, while other accusations are more tame. In some cases, there really is no evidence of a hostile work environment and no evidence of harassment. Everyone needs to be protected.

For those of you chiding me for the NLRB’s sweeping decisions against blanket confidentiality rules, I know, I know. But, after being on the front lines of these investigations, confidentiality is critical to protecting everyone in an investigation, and to prevent retaliation.

Notably, even the EEOC’s Select Task Force acknowledges the need for the EEOC and NLRB to “jointly clarify and harmonize the interplay of the National Labor Relations Act and federal EEO statutes with regard to the permissible confidentiality of workplace investigations, and the permissible scope of policies regulating workplace social media usage.”

  • Lesson 5: Update your policies.

Good employers have good policies that encourage people to come forward. The EEOC’s Select Task Force Report emphasized that a modern, updated policy will include the following elements:

    • Clear explanation of prohibited conduct, including examples
    • Promises to protect against retaliation
    • Complaint process that provides multiple, accessible avenues of complaint
    • Promises to protect the confidentiality of harassment complaints to the extent possible
    • Processes for a prompt, thorough, and impartial investigation
    • Promises to take immediate, proportionate corrective action when harassment has occurred

Promises to respond appropriately to behavior that might not be legally actionable “harassment,” but that which—left unchecked—might lead to harassment

The Select Task Force Report also lists a host of other recommendations, including updating training. Practically, even the best of policies may not have prevented the conduct that Ailes is accused of committing, but let’s take this opportunity to try.

UK Employment Tribunal Awards £3.2m To Woman Called “Crazy Miss Cokehead” By Colleagues

Squire Patton Boggs (US) LLP law firm

The woman who was called “Crazy Miss Cokehead” by her manager has been awarded nearly £3.2m by an Employment Tribunal for sexual harassment, reportedly including £44,000 for injury to feelings and a further £15,000 in aggravated damages.

We originally posted a blog on this story in November 2013 http://www.employmentlawworldview.com/crazy-miss-cokehead-when-banter-goes-too-far/.  Following the liability hearing, the Tribunal found in favour of Svetlana Lokhova who worked for the London branch of the Russian bank Sberbank CIB (UK) Ltd.

The Tribunal found that 19 out of her 22 allegations were not well founded.  However, on the main issues, it was found that Ms Lokhova’s former manager, David Longmuir, had bullied and harassed her on grounds of sex (even in emails), reportedly suggesting that she needed to visit a Nigerian tribesman for sex to “calm her down”.  Other such put-downs included saying that she had only been hired “because of her t***” and poking fun at her perceived privileged background.

In a stinging attack on the Bank, the Tribunal heavily criticised its conduct of the proceedings and said that there had been a “deliberate” attempt to bully her at the liability hearing in relation to an allegation that Ms Lokhova took drugs.  It said, “That allegation is completely without foundation and should never have been put to her in cross examination”.  In a Jeremy Kyle-style twist, Ms Lokhova was so “incensed and appalled” by the allegation that she took a drug test during the hearing, which was negative.

There were a number of other aggravating factors in this case.  Mr Longmuir was not disciplined at all despite the strength of the evidence and carried on working for the Bank for a further year after the bullying, receiving a £168,000 pay-off when he eventually did leave.  While I am sure that this of course had no bearing at all on the Tribunal’s ruling, you might be aware that with the benefit of the tax breaks applicable to severance payments, this is the equivalent of an Employment Judge’s salary for some 20 months.  No reason at all why thatpay-off should have irritated the Tribunal.

The Tribunal further criticised Paolo Zaniboni (who is still the CEO of the London office) who took no action against Mr Longmuir despite the evidence against him and whom the Tribunal also found to be guilty of unlawful victimisation.

The Tribunal’s attitude towards the Bank and its view of the aggravating features of this case is, perhaps, reflected in the reported awards of £44,000 and £15,000 for injury to feelings and aggravated damages respectively, which (if those reports are right) are very high awards indeed compared to previous cases.   The £44,000 figure would represent nearly a 50% uplift on the previously-understood ceiling for such awards.

The Tribunal in this case found that Ms Lokhova, who earned £750,000 a year in salary and bonuses working in Equity Sales, “will never work in financial services again, on the basis of the medical evidence”.  They found that she was suffering from a moderately severe psychiatric illness and had been suffering from such since January 2012.  The bulk of her compensation therefore represented future loss of earnings.

Lessons for employers

An interesting point for employers arising out of this case is how to deal with a case like this to limit the potential financial sanctions.  In this case there were emails containing the abuse and therefore written evidence of it (however, in most cases there will not be).  It should have been obvious to the Bank that it was going to lose in relation to those allegations.  So what can you do by way of mitigation?

1.  In circumstances where internal investigations reveal that it is likely that the allegations of harassment are true, we suggest issuing an immediate apology to the complainant in relation to those allegations (and in extreme circumstances consider paying some money as compensation to the victim).

2.  If an individual brings a claim, give serious consideration also to conceding liability when it is obvious that the allegation is true (however, take legal advice before doing this). Continuing to defend allegations that are indefensible will increase your costs and could lead to the Tribunal finding that the complainant’s injury (either medical and/or to feelings) has been aggravated.  An early apology can improve your prospects of limiting the damage and you will be able to focus on the allegations that are, perhaps, capable of a defence.  A swift apology could limit the complainant’s ability to claim that stress and/or publicity had done fatal damage to his/her career path (especially in a small world like the City of London)  and so prevent such significant loss of earnings claims also.

3.  Further, think carefully what is put to a witness in Tribunal. There was no relevance of Ms Lokhova’s alleged drug habits to the main issues in this case (which was whether or not she had been bullied and harassed).  It is difficult to see how baiting her on the witness stand to try and “prove” that she was a drug addict was going to achieve anything and, in this case, the Bank scored a comprehensive own goal when she conclusively proved that she was not.

4.  Last, give visible consideration to the handling of any employee who is clearly guilty of inappropriate behaviours. It did not take the Tribunal decision to show the Bank that Mr Longmuir’s conduct should be regarded as unacceptable.  If an employer in those circumstances takes the decision not to act against an employee (for example because he/she is a real money-spinner or related to someone in senior management or a major client) then that is a judgment it is entitled to make but only once it has weighed that option against the additional compensation the harassed individual is likely to receive as a result.  A really scorching final warning would now seem to have been a better compromise.

5.  If there is a pay-off, make it as small as possible!

ARTICLE BY

Office Romances: 3-Part Series on How to Shield Your Company from Liability Part 2

GT Law

 

More than ever, employers are facing serious claims arising from office romances.  Part 1of this three-piece series covered the potential claims, charges and lawsuits that may arise from workplace relationships.  In this installment, learn why it is imperative to adopt a company policy addressing fraternization.  Part 3 will address tips for employers to mitigate potential liability.

What Does Company Policy Say?

With Valentine’s Day around the corner, now is a good time for employers to update or create a policy governing dating among workers.  While some policies prohibit romantic relationships altogether, many employers recognize that employees will date each other regardless of policy.  In fact, they might “sneak around” to avoid violating the policy, which could create even more tension if the relationship is discovered or known only to a select few.  Moreover, strict no-dating policies may be difficult to implement and enforce, as they may not clearly define the conduct that is forbidden (e.g., does the policy prohibit socializing, dating, romantic relationships, or something else?).

Some policies interdict dating among management and staff, while others specify that there is to be no fraternization with outside third parties to avoid conflicts of interest or the appearance of impropriety.  Still, other organizations mandate that employees who date one another voluntarily inform the company about their relationship.

In such cases, the notification policies direct employees to report their dating relationships to Human Resources, the EEOC officer, or a member of management, and they ask employees to sign a written consent regarding the romantic relationship.  While this type of policy may seem intrusive, these documents are drafted to protect employers from unwanted complaints of future sexual harassment or retaliation.

When asking employees to sign consents, you should again advise them about the company’s sexual harassment policy and remind them about ramifications of policy violations.  Document that the employees entered into the relationship voluntarily, were counseled and – if/when the relationship ends – include a memo in their respective personnel records that the relationship ended, and the employees were reminded about the company’s sexual harassment policy.  You should require the dating parties to make certain written representations to shield the company from future claims:

  • The individuals have entered the relationship voluntarily and the relationship is consensual.
  • The employees will not engage in any conduct that makes others uncomfortable, intimidated, or creates a hostile work environment for other employees, guests, or third parties.
  • The employees do not and will not make any decisions that could impact each other’s terms and conditions of employment.
  • The employees will act professionally toward each other at all times, even after the relationship has ended.
  • The relationship will not cause unnecessary workplace disruptions or distractions or otherwise adversely impact productivity.
  • The employees will not retaliate against each other if/when the relationship ends.

Stay tuned for Part 3 for steps to take now to defend potential claims of discrimination and harassment.

 

Article by:

Mona M. Stone

Of:

Greenberg Traurig, LLP

Office Romances: 3-Part Series on How to Shield Your Company from Liability Part 1

GT Law

Love is in the air – which could bring claims of sexual harassment and discrimination.  As Valentine’s Day approaches, employers should be mindful of office romances:

  • Statistics show that more than 20% of married couples met at work, yet nearly half of those employees reported that they did not know if their company had a policy on office romances.
  • According to a recent survey by Monster Worldwide, 59% of employees admitted that they have been involved in an office romance.
  • An additional 64% answered that they would be willing to do so if the opportunity arose.
  • Yet, 75% of employers do not have a policy regarding workplace relationships.
  • AshleyMadison.com (a dating site for married people looking to cheat – yikes!) reports that 46% percent of men and 37% percent of women have had an affair with a co-worker. Among these cheaters, 72% percent of women and 59% percent of men say that they had their first encounter with the affair partner at a company holiday party … which means now is the time for employers to pay attention!

In this three-part series, learn (1) the potential risks to employers from workplace relationships, (2) how to draft an office romance policy, and (3) what steps to take to head off potential litigation.  Part I addresses the negative consequences that office romances can pose to unprepared employers.

What’s the Harm?

While consensual office relationships are more commonplace than in the past, they can trigger business and legal headaches for employers when the relationship fizzles or is no longer consensual.  Moreover, fellow employees may feel resentful, jealous, uncomfortable, or intimidated (especially in relationships between a supervisor and a subordinate), leading to complaints of sexual harassment, discrimination, or retaliation.

Importantly, claims may be brought not only by the individuals in the relationship, but even by third parties.  Complaints of “paramour favoritism” are on the rise and are being filed by employees who allege they are overlooked due to preferential treatment towards a co-worker who is engaged in a romantic relationship with the boss.  While courts differ on whether such claims are meritorious, turning a blind eye to such relationships may result in business interruption and liability.

In 2011, for example, the EEOC reported that 11,364 charges of sexual harassment were filed, and 16.3% of those were filed by men.  These charges are quite costly to employers – the EEOC recovered over $52 million in damages for sexual harassment claims in 2011.  Employers might not be able to prevent love in the office, but you can take action to mitigate potential liability.  An important initial measure is to draft a good policy depending on your company’s size, structure, business goals, and culture.  Make sure that, if you implement an office dating policy, you  enforce it uniformly and take appropriate and equal action for violations of the policy.

Watch for installments 2 and 3 to learn the dos and don’ts when drafting an office romance policy and tips for employers to avoid liability.

Article by:

Mona M. Stone

Of:

Greenberg Traurig, LLP

Allegations of Sexual Harassment and Sexual Violence: What Must a School Do?

Recently posted in the National Law Review  an article by attorney Stephen A. Mendelsohn of Greenberg Traurig, LLP regarding universities examining their policies and procedures concerning the investigation and resolution of sexual harassment and sexual violence allegations:

GT Law

Recent events at major universities should cause schools to critically examine their policies and procedures concerning the investigation and resolution of sexual harassment and sexual violence allegations. This GT Alert examines what an institution must do to limit its potential exposure to lawsuits alleging sexual harassment or sexual violence by students upon students or by faculty or staff upon students.

TITLE IX

All educational institutions that receive federal financial assistance are subject to Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. sections 1681et seq. and the United States Department of Education (DOE) implementing regulations, 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex. Sexual harassment, which includes sexual violence, covers student-student, studentstaff/faculty and faculty-faculty conduct. The DOE’s Office of Civil Rights (OCR), on April 4, 2011, published a “Dear Colleague” letter that reiterates a school’s legal obligations to investigate and resolve sexual harassment and sexual violence complaints and warns schools that they must comply with Title IX and DOE, OCR regulations or face DOE sanctions.

A School’s Obligations to Respond to Sexual Harassment and Sexual Violence Complaints

Determining what constitutes sexual harassment and sexual violence is often difficult. Though some instances are seemingly obvious, many cases turn on the issue of consent. Title IX does not prohibit all forms of sexual behavior between consenting adults. Rather, it prohibits sexual acts perpetuated against a person’s will or where a person is incapable of giving consent due to the victim’s abuse of drugs or alcohol. A person may not give consent due to intellectual or other disabilities. Whether proper consent has been given is often a challenging issue.

Where students participate in a school’s education programs and activities, Title IX is applicable. It is also applicable, for example, where student upon student sexual harassment or sexual violence occurs off campus and does not involve school programs or activities.

A school that knows, or reasonably should know, about possible sexual harassment or sexual violence must promptly investigate what may have happened and must also take appropriate steps to resolve the situation. Even if the matter is subject to a law enforcement investigation, the school must conduct its own investigation. If a school has reason to believe that there may have been criminal conduct, the school must immediately notify law enforcement officials.

Schools must also navigate through the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g; 34 C.F.R. 99.15. Though FERPA protects student confidentiality, a school may not withhold the identity of the complainant from the alleged harasser.

Procedural Requirements for Sexual Harassment and Sexual Violence Investigations

Under Title IX, schools must, at a minimum, take three procedural steps in investigating sexual harassment and sexual violence complaints. These include:

  • Disseminating a Notice of Discrimination;
  • Designating at least one employee to serve as a Title IX coordinator;
  • Adopting and publishing grievance procedures for prompt and fair resolution of student and employee sex discrimination complaints.

Whether a school’s Notice of Discrimination complies with Title IX requires the application of the DOE, OCR’s regulations. A Title IX coordinator must have adequate training in Title IX’s policies and procedures.

Title IX requires that grievance procedures be published and that they provide a prompt and fair process. Though the grievance procedures need not be separate from normal student disciplinary procedures, they must include:

  • Notice to students and employees of the procedures and where complaints may be filed;
  • Adequate and impartial investigations carried out by employees where both parties have the right to present witnesses and evidence;
  • Designated and reasonably prompt time frames for the process;
  • Notice to the parties of the outcome;
  • Steps taken to prevent recurrence and correct discriminating effects.

Risk Management

Victims of sexual harassment and sexual violence have the right to seek monetary damages against schools for student upon student and faculty/staff conduct where the school is deliberately indifferent to the victim’s complaints. Davis v. Monroe County Bd. of Ed, 119 S. Ct. 1661(1999). Compliance with Title IX and the DOE, OCR’s regulations, along with a full and fair investigation and grievance process, provides a defense to a lawsuit. In the absence of Title IX and DOE regulatory compliance, or the failure to apply existing school policies and procedures, schools will invite Title IX actions.

A thorough review and assessment of Title IX, DOE, OCR regulations and existing policies and procedures is key to avoiding monetary liability for sexual harassment and sexual violence and in aiding victims.

©2011 Greenberg Traurig, LLP. All rights reserved.