Hi
Here is your report. If you need clarification, just ask.
willie-ga
INTRODUCTION
________________
Sexual harassment is one of the big issues that are plaguing the
workplace of today's society. Sexual harassment is usually defined as
unwelcome sexual advances, requests for sexual favours, or other
verbal or physical conduct of a sexual nature, when submission to or
rejection of such conduct is used as a basis for employment decisions
affecting an individual, or where such conduct has the purpose or
effect of interfering unreasonably with the individual's work
performance, or creates an offensive, hostile or intimidating working
environment
The law concerning sexual harassment is fairly new. A brief chronology
of US Law follows:
1964 -Title VII of the Civil Rights Act is passed. Title VII prohibits
sex discrimination, but sexual harassment is not specifically
mentioned in the statute or in discussions that lead to passage of the
statute. Title VII is administered by the EEOC.
1980 - The EEOC issues guidelines regarding sexual harassment that are
intended to help individuals and companies understand sexual
harassment. The guidelines say that sexual harassment is a form of sex
discrimination and violates Title VII. The guidelines are not binding
on the courts, but the courts often look to them for guidance.
1986 - The Supreme Court hears its first sexual harassment case. The
Court is asked to decide whether a bank teller who claimed that she
was forced to have sex with her branch manager was sexually harassed.
1991 - A new Civil Rights Act is passed. It strengthens Title VII by
providing for increased damages and jury trials in cases of
intentional discrimination
Most organizations set forth formal written policies and procedures
designed to educate employees about the subject and avoid liability.
Most organizations have made it clear that this type of behavior will
not be tolerated. However, what happens to these policies and
procedures concerning this behavior when it comes to the working
environment of the hospitlaity industry?
Because of the differences in the "hospitality service versus other
industries, what may be normal behavior among the restaurant employees
may very well be sexual harassment.
Listen to the employees of any restaurant and you will hear tales of
sexual behavior, joking and horseplay at work. While most of this
behavior is normal social interaction in a service industry, in an
office setting this behavior is known as sexual harassment.
The restaurant industry is especially susceptible to incidents of
sexual harassing behaviors due to certain social characteristics. The
most obvious is that of restaurant's attracting or recruiting
employees with "outgoing personalities", especially for the waiting
staff. Waiting staff who have a friendly and outgoing personality
usually sell more to the customer which in turn produces higher
profits for the restaurant as well as larger tips for the wait staff.
Today, people do not just go to restaurants to eat, but they go to be
entertained. One has to just look at the explosion of Theme
Restaurants to justify this statement. Due to the high number of
people restaurant employees are in contact with on a daily basis
whether it be customers or employees, those who have "outgoing or
friendly personalities" are likely to be more social. Other social
characteristics include the high degree of social contact in the
workplace, the unusual hours of work, including long, irregular hours
involving evenings and holidays and the involvement with a number of
different people in the course of delivering the service. For these
reasons, restaurants create a very informal atmosphere (environment)
which in the end actually encourages greater intimacy with co-workers.
Despite the education and awareness training that has been conducted,
human resource professionals feel the biggest problem with this issue
is that the majority of employees and managers are still unsure about
what constitutes sexual harassment.
Sexual harassment can be a confusing issue for many people because
anything that is "unwelcome" can be determined in the mind of the
receiver. An important factor to understand in determining whether a
behavior can be sexual harassment is that what matters most is how the
behavior makes another person feel.
In other words, what may be considered a harassing behavior to one
person may be simple social interaction to another. The line between
work and social interaction in a hospitality setting can easily be
blurred. And that makes monitoring harassment all the more difficult.
And in the hospityality industry, where there is a lot of socializing
between co-workers this is most difficult to determine where to draw
the line. Part of the confusion lies in the vagueness of the law
itself.
Types of Sexual Harassment
___________________________
As defined by the EEOC in 1980, there are two different categories of
sexual harassment. The first, quid pro quo harassment, occurs when an
individual's acceptance or rejection of sexual advances that are made
as a condition of keeping ones position at work or to have a promotion
granted. This type of sexual harassment is essentially a power game.
The second type of sexual harassment is that of "hostile environment".
"A hostile environment exists wherever employees are exposed to
persistent and unwelcome lewd remarks, sexual taunting, talking in
seductive tones, quarries about one's personal life, suggestive
sounds, obscene gestures, pinching, touching and references to anatomy
and physical appearance by anyone entrusted with control of company
policy if the acts were performed in the execution of a corporate
function".
Sexual harassment can take many forms from a variety of personnel and
management, as well as employees who have to be aware of "what is
sexual harassment? It is far more than physical assault or a demand
for sex in order to retain a job or be promoted. It can be
· suggestive remarks
· teasing or taunting of a sexual nature
· unwelcome physical conduct or sexual advances
· sexual bantering
· bragging about sexual prowess
· office or locker-room pinups
· "compliments" with sexual overtones (Verespej, 1995)
Sexual Harassment surveys
______________________
Numerous studies have been carries out on Sexual Harassment in the
hospitality business area.. Perhaps the most controversial took place
in New Zealand in 2001.
Classified advertisements in national newspapers for "Willing
Waitress", "Poofy Porter", "Easy Bar Staff" and "Buxom Barista",
appeared in newspapers, placed there by the Human Rights Commission in
New Zealand’s first study of sexual harassment in the hospitality
industry conducted by Massey researcher Neil Lunt and Carl Davidson of
No Doubt Research for the HRC.
"One of the consequences of considering harassment a part of working
in hospitality is that some staff normalise harassment behaviour and
dealing with it becomes their responsibility," Mr Lunt says.
Hospitality staff taking part in the survey reported dealing with
harassment from colleagues and customers in informal ways ranging from
laughing it off to leaving their jobs. Others who experienced
harassment had reported it to the employer and the harasser was
subsequently fired. "This is not an option when the harasser is the
boss," Mr Lunt says. "People were aware that certain behaviours were
illegal but were relatively unaware of the precise redress (ie
legislation) that was available."
"Various arguments have been put forward as to why the hospitality
industry makes workers more vulnerable to sexual harassment," Mr
Davidson said. "Among them are that odd working hours blur the lines
between work and social interaction, that restaurants and hotels are
not as structured as offices or factories and that there is inherent
ambiguity in an industry where service and servitude are part of the
job."
HRC spokesperson Lana Hart said the hospitality industry was targeted
in this campaign because 20 percent of complaints to the HRC in the
past five years had come from this sector.
The study concluded that among hospitality workers :
31% of New Zealand women report that they have been sexually harassed
13% of New Zealand men report that they have been sexually harassed.
And that 19% of sexual harassment complaints received by the Human
Rights Commission were from workers in the hospitality industry
In another study the Cornell Quarterly, February 1994, reports that
64% of female managers in the hospitality industry state they have
been sexually harassed at work. Ninety percent report that sex
discrimination and harassment occurs on a frequent basis during
promotion-related situations.(2)
There have also been studies conducted to see whether male and female
employees have a different view of sexual harassment.
In a paper: Sexual Harassment in the Restaurant Industry:
Is There a Difference Jerome F. Agrusa and Wendy Coats analysed the
difference between male sexual harassment and female sexual harassment
in the restaurant business.
Their study posed a series of demographic, work experience and sexual
harassment perception questions to both male and female restaurant
employees. The purpose of the study was to better understand what
restaurant employees perceive is sexual harassment whether by manager,
co-worker or customer. The survey instrument contained 20 questions to
parallel debates and findings developed through a literature review of
similar research.
The survey included a total of 5 demographic questions, one work
history question and 14 sexual harassment perception questions.
Their answers are summarised here:
Q: Sexual Harassment occurs more often in the Restaurant Industry?
Over 60%, (60.6%) of the respondents stated that they felt sexual
harassment occurs more often in the restaurant industry than other
industries. The female respondents overwhelmingly agreed with almost
70% (69.6%), stating that sexual harassment occurs more often in the
restaurant industry than other industries. Over one halve{ (52.6%) of
the male respondents also agreed with the majority of the female
respondents that sexual harassment occurs more often in the restaurant
industry than other industries.
Q: Sexual Harassment is more accepted in the restaurant industry?
71.4% of the respondents felt sexual harassment is more accepted than
in other industries. Over 80% (80.6%) of the female respondents and
64.1% of the male respondents feel that sexual harassment is more
acceptable in the restaurant industry than in other industries.
Q: Is employees dating in the restaurant workplace sexual
harassment?..
The majority of both male and female respondents disagree that
workplace dating constitutes sexual harassment.
Q: Does your restaurant have a Sexual harassment policy?
Almost one third, (32.9%) of the respondents answered no or unsure. In
other words, over one third of the employees stated that they were
uninformed of a sexual harassment policy in the restaurant where they
are employed.
Q: Have you been Sexually harassed at work by a customer, manager or
co-worker?
Over 30% (30.9%) of the respondents stated yes. Female respondents
stated they have felt sexually harassed by a customer, manager or
co-worker 42.4%, with 21.2% of the male respondents having a similar
experience.
They concluded that :
"Management and owners have to do a better job of informing their
employees of the restaurants sexual harassment policies. One way that
restaurant owners and managers can limit their liability in sexual
harassment lawsuits is to take reasonable precautions by following
EEOC guidelines related to sexual harassment such as issuing a policy
prohibiting sexual harassment, establishing grievance procedures,
establish a procedure for corroborating a change and establish
discipline for violations."
"By making certain that all employees are aware of the restaurants
sexual harassment policy, in case of a sexual harassment claim, the
policy can be used to document the restaurants proactive stance. A way
of assuring that all employees are aware of the sexual harassment
policy is to have the sexual harassment policies posted so that it is
in plain view of all employees, as well as have all employees and
supervisors sign a form that they are aware of the sexual harassment
policies for the restaurant. This may seem like a lot of unnecessary
paperwork, but it could save your restaurant when a sexual harassment
lawsuit is filed. " (3)
Advice for Employers in the hospitality industry
______________________________________________________
Employers can be liable for large sums of compensation in Sexual
Harassment cases. For example
A Missouri federal judge entered a $257,500 award on behalf of a
former waitress who claimed that she was forced to quit her job
because of sexual harassment. Brookie Blake claimed that during her
employment at Charlie Gitto's Pasta House, she was subjected to
numerous acts of sexual harassment, including pressure from her
manager, George Gitto, for a sexual relationship, in return for
preferential treatment and scheduling. The "last straw" occurred on
January 31, 1994: Gitto pinned her on a table and exposed himself
while saying, "You know you want it." Less than two weeks later, Blake
claimed she was constructively discharged because of an intolerable
working environment
In another example a federal judge in New Jersey awarded $250,000 in
damages for emotional distress to a former Continental Airlines pilot
who alleged that she was subjected to a sexually hostile environment
that included pornography left in the cockpit by her male co-workers.
Captain Tammy Blakey testified that a pornographic picture fell out of
a flight manual while an FAA inspector looked through it. The evidence
also indicated that pornographic pictures were glued to the bottom of
drawers in the cockpit and placed behind panels in the cockpit and
marked with an "X" so pilots would know to remove the panels to view
the pictures. Some of the pornography was specifically directed at
Blakey with her name written on it.
As a result of two other recent U.S. Supreme cases, however, there are
specific steps employers can now take to reduce the potential for
liability and high jury verdicts in sexual harassment cases.
To quote from a California Law firms advice at : U.S. SUPREME COURT:
Prescription for Protection : The U.S. Supreme Court gives employers
significant guidance on protecting against sexual harassment claims (
4)
"In the decisions of Farragher v. City of Boca Raton and Burlington
Industries v. Ellerth, the U.S. Supreme Court reaffirmed existing law
which provides that an employer can be liable for a supervisor’s
sexual harassment of an employee where the employer had no knowledge
of the supervisor’s harassing actions and also where the employee did
not complain about the alleged misconduct. "
"The court also held that an employee does not have to sustain an
adverse employment action as a result of the sexual harassment in
order to bring litigation. Thus, an employee does not have to suffer a
tangible injury such as a demotion, loss of promotion or termination;
the mere fact that sexual harassment took place is sufficient to state
a claim. "
"Notwithstanding these tough rulings for employers, the U.S. Supreme
Court specifically found that an employer may still raise an
affirmative defense to dismiss sexual harassment claims against it if
it is able to show that: (1) it exercised reasonable care to prevent
the sexual harassment from occurring and promptly sought to correct
any sexual harassing behavior brought to its attention; and (2) the
plaintiff unreasonably failed to take advantage of opportun-ities the
employer provided to prevent or correct the alleged sexual harassment
through a sexual harassment complaint process. "
There are steps that employers are advised to take to protect
themselves from employee sexual harassment cases. They should:
· ensure that sexual harassment policies and procedures are in
compliance with current state and federal laws.
· Circulate their sexual harassment policy, reinforcing commitment to
eliminating and preventing harassment in the workplace.
· Obtain written acknowledgments from employees regarding their
receipt of policies.
· Provide sexual harassment training for managers.
· Update sexual harassment investigation pro-cedures for compliance
with state and federal law.
· Train human resource’s staff regarding appropriate techniques.
· Conduct an audit of personnel files involving past sexual harassment
and discrimination complaints
· Update hiring policies and procedures
Here is an example policy procedure statement, courtesy of William H.
Donahue Jr, an attorney practicing in New Jersey. (5)
"A Sexual Harassment Policy Statement
- We expect behavior that respects and encourages the full potential
of every employee. We wish to enhance the professionalism and
profitability of the company, and each of us needs to understand this
can't occur in an environment where individuals feel harassed,
intimidated or discriminated against due to their gender.
- There are two forms of sexual harassment we must all strive to
avoid. The first and most obvious form is asking for sexual favours or
behaving inappropriately toward any employee you supervise. Such acts
could lead employees to believe that if they do comply, there will be
workplace benefits or if they do not comply with your wishes or endure
your sexually charged comments, you could fire them or prevent them
from obtaining promotions or other benefits.
- The second form of sexual harassment concerns the environment in
which we work and is easier to make mistakes about. Such actions as
telling lewd jokes, displaying sexually explicit photos, teasing a
coworker (even one who does not report to you) about sexual matters
can be perceived as offensive, degrading or intimidating. This could
cause an employee to prevent another from working effectively, harming
all of us and the health of our business."
It is necessary for all employers to have a detailed policy statement,
to protect both themselves, and their employees.
Advice for Employees concerning sexual harassment in the workplace
_________________________________________________________________________
There are two type of harassment under the legal definition:
1/ Quid-Pro-Quo Harassment
This is the when the employer makes sex a prerequisite to getting
something in the workplace. For example: " sleep with me and you'll
get the job." That's illegal. This type of sexual harassment is the
"casting couch" cliché. Quid-pro-quo can also include negatives. For
example, "sleep with me or you're fired" is also illegal.
Obviously, the woman who is fired because she wouldn't sleep with the
boss can sue.
Take for example a situation where the boss asks one of his assistants
to sleep with him in exchange for a promotion. She does it and gets
the promotion. Under the law, she has a claim, because her agreeing to
his sexual demands was a condition of the promotion. She also has a
claim if she refused and didn't get the promotion.
However the conduct must be "offensive". If two employees have a good
time exchanging sexual jokes, it would not be sexual harassment. If
one employee kept telling another employee sexual jokes that the
second employee found offensive, it would be sexual harassment. If two
employees dated and engaged in consensual sex, this would not be
sexual harassment. If one of the two then wanted to terminate the
relationship, and the other used the unequal relative terms and
conditions of employment of the work place to further the
relationship, this would be sexual harassment.
Jokes, pictures, touching, leering, unwanted requests for a date have
all been found by courts to be sexual harassment. Sexual harassment
can be between people of the same sex. Sexual harassment can be a
woman harassing a man.
Anyone who is offended by a sexually harassing environment may
theoretically sue. However, that employee's offense must be
reasonable. An extremely sensitive person might not be able to
maintain a claim, because her feelings of having been offended were
not reasonable.
The reasonableness is evaluated by a standard that is the same as a
person in the victim's circumstances. For example, what a reasonable
woman might think is a hostile environment is not necessarily the same
as what a man might think is a hostile environment. If it's a woman
who was harassed, it's the woman's point of view that counts.
Victims of sexual harassment can recover for their lost wages, future
lost wages, emotional distress, punitive damages, and attorneys fees.
2/ Hostile Workplace Environment
Hostile environment sexual harassment is a situation in which the
employer, supervisor, or co-worker or customer does or says things
that make the victim feel uncomfortable because of his or her sex.
Hostile environment sexual harassment does not need to include a
demand for an exchange of sex for a job benefit. It is the creation of
an "uncomfortable environment".
If a fellow worker is the one doing the discrimination and harassment,
you should follow the company policy and report the conduct to your
supervisor and Human Resources. Report it in writing to have proof of
the date you reported it, and be sure to be specific about the exact
nature of the discrimination or harassment. Saying things like Joe is
bothering me or harassing me is not sufficient. Also, saying that Joe
called me the "N" word once is insufficient. Don't retaliate back, or
you can be fired.
Anyone who is offended by a discriminatory or sexually harassing
hostile environment may theoretically sue. However, that employee's
offense must be reasonable. An extremely sensitive person might not be
able to maintain a claim, if his or her feelings, that have been
offended, were not reasonable.
Again, victims of discrimination or sexual harassment can recover for
their lost wages, future lost wages, emotional distress, punitive
damages, and attorneys fees.
How an Employee can avoid sexual Harassment
___________________________________________
Employees should also have personal policies to avoid sexual
harassment in their place of work.
An employee should
· State plainly that sexual attentions are unwanted and unwelcome.
· Keep work relationships professional rather than personal.
· Avoid situations which could encourage harassment, such as
auditions or "private rehearsals" after business hours, in homes or
hotel rooms, or auditions that turn into lunch or dinner meetings. If
in doubt, they should not go alone.
· If limited costuming or nudity is required at the place of work,
extra care must be taken.
If someone harasses the employee they should
· SAY NO! Tell the perpetrator the such behavior constitutes sexual
harassment and is against the law.
· KEEP A RECORD of what has occurred and who was present. Keep a log
of all actions you deem harassment.
· MAKE AN INFORMAL COMPLAINT. Notify their manager IN WRITING. Keep a
copy.
· GET SUPPORT. Talk with a friend or others who can help you express
your anger and frustration and remind you it is not your fault.
· FILE FORMAL CHARGES. A complaint to management or even Police has
the best chance of stopping the harasser's illegal behavior.
· In serious cases, SEE AN ATTORNEY who is a specialist in Affirmative
Action or labor law.
Summary
_______
The Equal Employment Opportunity commission (EEOC) defines Sexual
Harassment as unwelcome sexual advances, requests for sexual favors,
or verbal or physical conduct of a sexual nature, when submission to
such conduct is made, whether explicitly or implicitly, a term or
condition of an individual's employment, submission to or rejection of
such conduct by an individual is used as the basis for employment
decisions, or when the conduct has the purpose or effect of
unreasonably interfering with an individual's work performance or
creating an intimidating, hostile or offensive working environment.
Sexual harassment can include a wide variety of behavior and occurs on
various levels, ranging from:
- occasional comments, jokes, touching or gestures
- behavior that persists even after being issued a light, informal
warning or an isolated behavior that is more severe,
- repeated or persistent offensive behavior even after being issued
formal discipline, aggressive touching, or any behavior that is
clearly intended to cause offense, even if isolated.
The company's response to any form of illegal harassment will vary
depending on the level of offense.
In the hospitality business area some of these areas can be blurred
due to the social nature of the work. In these work areas it is
therefore all the more important that employers set strict policies in
place to control sexual harassment, and employees are aware both of
the need to follow the company policies, and of their rights in the
matter if they are being harassed.
References
_________
(1) Sexual harassment studied: Massey News | 21 September, 2001
(http://masseynews.massey.ac.nz/_2001/publications_2001/Massey_News/September/sept_24/stories/sexual_harassment.html
)
(2) Sexual Harassment In The Workplace
by Evelyn R. Wiggins, Esq. & Alexander Padilla
(http://www.crminsurance.com/harass.html )
(3) Sexual Harassment in the Restaurant industry, Advances in
Hospitality and Tourism Research Volume III
(http://www.hotel-online.com/Trends/AdvancesInHospitalityResearch/SexualHarassment1998.html
)
(4) U.S. SUPREME COURT: Prescription for Protection
The U.S. Supreme Court gives employers significant guidance
on protecting against sexual harassment claims
( http://www.hotel-online.com/Trends/Jeffer/Articles/SupremeCourtProtection.html
)
(5) Avoid Sexual Harassment
(http://www.professionaljeweler.com/archives/articles/1998/apr98/0498ml1.html
) |
Clarification of Answer by
willie-ga
on
02 Nov 2002 01:03 PST
Hello again
Here are some hotel examples as requested:
In Kurzinski v. The Buckingham Hotel in New York in 2001, a
49-year-old female maid sued the defendant hotel alleging sexual
harassment. The plaintiff contended that her supervisor sexually
harassed her by using inappropriate language and gestures, and
physically touching her. She alleged that nothing was done to stop the
harassment after she reported it. The defendant denied knowledge of
sexual harassment and contended that the plaintiff's supervisor was
terminated when an investigation revealed the harassment. The court
found for the plaintiff, and awarded her damages of $199,000.
Abstracted from "Employment Practices" at:
( http://www.juryverdictresearch.com/Report_Samples/EPL_VF_Sample/epl_vf_sample.html
)
..o0o..
It is not only female staff that get harassed, but the following case
shows that the law is still murky in some areas.
In March 2001, Medina Rene, a hotel employee who is openly gay, lost
his case against the MGM Grand Hotel in Las Vegas in an appeal before
the United States Court of Appeals for the Ninth Circuit. Mr. Rene,
48, had worked for the hotel for more than two years as a butler for
wealthy guests and claimed he was continually harassed by other
butlers. They would try to pinch his buttocks and engage in other
inappropriate contact, he contended.
The hotel investigated Mr. Rene's claims twice and each time found
them without merit, according to Alan Feldman, a spokesman. Because
Mr. Rene is gay, the court ruled that any harassment would have been
based on his sexual orientation, not his sex. "The degrading and
humiliating treatment Rene contends that he received from his fellow
workers is appalling, and is conduct that is most disturbing to this
court," the court said. "However, this type of discrimination, based
on sexual orientation, does not fall within the prohibitions of Title
VII."
One judge on the three-member panel dissented, arguing that "while
gay-baiting insults and teasing are not actionable under Title VII, a
line is crossed when the abuse is physical and sexual."
Mr. Rene's lawyer, Richard Segerblom, is requesting an appeal before
an 11-member panel of judges. He argues that the court unnecessarily
delved into the motivation of the harassment. Because the very nature
of the acts was sexual, they constitute sexual harassment, he argues.
Mr. Segerblom also said that Mr. Rene should not have to prove that
the only reason he was harassed was because of his sex.
Abstracted from a New York Times article:Men Are Claiming Harassment
by Men
By REED ABELSON 6/10/01
( http://socanth.msu.montana.edu/quinn/docs/articles/Men_Harassing_Men.htm
)
..o0o..
Hotels also have to cover themselves against Sexual Harassment cases
which may be brought by guests. For example, in one of the biggest
sexual harassment cases ever:
The Tailhook Convention was an annual symposium and convention
primarily directed at military aviators and held at the Las Vegas
Hilton in Las Vegas, Nevada. Navy Lieutenant Paula A. Coughlin, a
decorated helicopter pilot, attended the 1991 Tailhook Convention in
her capacity as an aide to Rear Admiral John Snyder.
After attending a banquet at the Las Vegas Hilton on the evening of
Saturday, September 7, 1991, Coughlin returned to her nearby hotel to
change out of her military uniform. She then returned to the Las Vegas
Hilton to socialize with friends at one of the many convention-related
social events at the hotel. Looking for her friends, she entered a
third-floor area where several hospitality suites hosted by various
Navy squadrons were located. As she started to walk down the
hallway--now notoriously known as the "gauntlet"--she was attacked,
groped, grabbed, and handled by a throng of men. Fearing she was about
to be gang-raped, Coughlin frantically tried to escape. After several
minutes, she was eventually able to fight her way into an empty suite.
After the attack, Coughlin experienced post-traumatic stress disorder
and other psychological problems related to the attack. Although she
remained in the Navy for a couple of years, these psychological
problems as well as other problems stemming from the attack hampered
her ability to perform her duties. Ultimately, she was compelled to
resign from the United States Navy.
Coughlin brought this action and was eventually awarded compensatory
damages of $1,695,000 from the Convention organisers. After bifurcated
proceedings mandated by Nevada law, the jury also assessed punitive
damages of $2,625,000 against the Las Vegas Hotel.
You'll find a full run down of the case here:
Sexual Harassment: Tailhook
( http://www.lalabor.com/cases/shsa/tailhook1.html )
Hope that's OK
willie
|
,
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