Ask Leslie: What Should I Do When A Customer Harasses My Employee?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

 

One of my front desk clerks reported to me that a repeat guest at our hotel propositions her every time he checks in for a stay. She politely refused him and tried to ignore the first two instances, but he persists. His employer regularly sends many employees who travel in this area to stay at our hotel, so I would hate to lose the business. What is the best way to manage this situation?  

 

Signed: Mickey

 

Dear Mickey:


When an employer receives a report of possible sexual harassment, the employer has a duty to investigate; document the investigation, and take steps to make sure the harassment is not allowed to continue. This true no matter the business implications, and, in reality, the damage to your business health if you do not manage reports of sexual harassment properly will be far greater than possibly losing one source of repeat guests.

Sexual harassment is a particular problem in the hospitality industry. As a result, several cities have enacted laws aimed at protecting employees who work in the industry. Seattle, for example, has a law that requires employers to maintain a list of all guests accused of sexual harassment or violence in the preceding five years. If the guest is accused of this misconduct by a sworn statement, the hotel must refuse service to that guest for three years. Illinois' new mandatory sexual harassment training law includes a special focus on those who work in the food and beverage aspect of the hospitality industry, recognizing the many complaints that originate from customer or guest misconduct.

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is pursuing several discrimination suits regarding the failure of an employer to protect employees from sexual harassment by patrons of the employer's business.

In EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018), the Seventh Circuit Court of Appeals unequivocally held customer or vendor harassment is actionable, stating that the customer is not always right and that a customer's wrongs cannot be tolerated by an employer. Title VII of the Civil Rights Act requires employers to provide their employees with nondiscriminatory working conditions and harassment-free environments. The sexual misconduct of guests, customers and vendors can create a hostile working environment, just like when coworkers do the same.

Employers are liable for third-party harassment if they unreasonably fail to take appropriate corrective action reasonably likely to prevent the misconduct from recurring. The appropriate corrective action can depend upon the individual circumstances.

For example, in some instances, separating the employee from the offending customer may be a reasonable corrective action, so long as it is effective and the employee victim is not disadvantaged by the corrective action; otherwise, this could lead to a retaliation claim by the harassed employee.

In other instances, it may be appropriate to contact the offending guest's employer, as in your situation, and tell the employer you welcome all other employees who frequent your hotel, but this particular guest is no longer welcome.

Have a policy that refers to, and forbids, customer-based harassment. Post it in every guest room, at the front desk, at the bar, and in the public restrooms. Train your employees to report sexual misconduct by anyone in the workplace immediately. They do not have to put up with it as a condition of their employment. "Hospitality" does not extend to acquiescing to unwelcome severe or pervasive conduct.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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