EPLI Exposures With Teenage Workers

The teenage employees did not complain directly to management at the hotel. While the hotel has a complaint procedure on workplace discrimination and harassment, it applies only to issues between employees and not to problems involving third parties such as vendors, customers or hotel guests.

Several parents have threatened to file charges on behalf of their daughters with the U.S. Equal Employment Opportunity Commission and to retain the services of a plaintiffs lawyer to sue the hotel.

EPL Counseling Advice:

Clearly, under Title VII of the Civil Rights Act of 1964 and analogous state law (the Florida Human Rights Act), the hotel has the duty to investigate any complaint of workplace discrimination and harassment in a prompt fashion. This duty is no different in the case of a teenage worker who does not complain directly to the employer but whose parent makes the complaint.

It also is irrelevant that the harassment or discrimination involves conduct of third parties such as bar patrons or hotel guests.

Once the hotel has knowledge of a problem involving the workplace environment of an employee, it must investigate the internal complaints and institute appropriate remedial measures to ensure that the discrimination or harassment does not reoccur.

In these circumstances, it would behoove the interests of the hotel to launch an immediate investigation and place the teenage workers on a paid leave of absence pending the outcome of the investigation. This will prevent any economic damage to those workers during the period of investigation.

If the investigation reveals that the bar customers and hotel guests were engaging in acts of discrimination or harassment toward the teenage employees, the hotel would have a dutywhich is evolving at the present time under the case lawto protect the teenage employees work environment and to ensure that they are not placed "in harms way" due to a failure to undertake remedial measures.

The EEOC interprets Title VII to make an employer legally responsible for the acts of non-employees in circumstances where the employer knew or should have known of the offending conduct. By continuing to expose employees to a situation where discrimination or harassment has occurred in the past and is likely to occur in the future, the employer is deemed to be legally responsible for its failure to prevent the third partys acts.

The law requires the hotel to take affirmative steps in such circumstances to prevent reoccurrence of the problem. Examples include putting the guest on notice of unacceptable behavior, refusing to rent a room to a guest known to have harassed an employee, and barring a patron from a restaurant bar.

Once remedial measures are undertaken, the employee should be placed back to work and memoranda should be provided to them and their parents regarding the hotels steps to prevent any reoccurrence of the discrimination or harassment. This will minimize the hotels legal exposure.

While the hotel could attempt to pay money in an effort to secure a release of claims from the workers to avoid an EEOC charge or lawsuit, it is likely that the release would not be enforceable because of the age of the workers. It would be difficult to get an ironclad and enforceable release absent the entry of a court order appointing a guardian or authorizing a parent to settle any claim.

The hotel may well experience an investigation undertaken by the EEOC despite its best efforts to remediate these problems. The Commission is focusing more intently on educating young workers about their rights and investigating complaints involving harassment and discrimination occurring to minors. Should claims be filed with the EEOC, the hotel could defend its personnel decisions based on the institution of appropriate remedial measures.

On a going forward basis, the hotel should consider expanding its current personnel policies prohibiting workplace discrimination and harassment.

In the hospitality industry, it is important to have personnel policies addressing third party problems involving vendors, customers and guests. The hotel should amend its personnel policy to advise employees that the policies also prohibit third party harassment and discrimination, and that any violations of the policy should be made known to the hotels management so that appropriate remedial measures can be undertaken where and when necessary.

Finally, the hotel should give consideration to revising its new employee orientation program. Teenage hires are often ill-prepared to recognize harassment or discrimination, and inappropriate and even unlawful workplace behavior might be common in teenage social settings.

A comprehensive new hire orientation on the hotels policies and complaint procedures can serve as effective risk management in these circumstances.

Lisa Bee is director of EPL risk management for Lexington Insurance Company in Boston. Gerald L. Maatman is a partner with Seyfarth Shaw in Chicago.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, October 3, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.