Employment Law Daily Reporting harassment to supervisor not enough where policy required more
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Wednesday, November 21, 2018

Reporting harassment to supervisor not enough where policy required more

By Nicole D. Prysby, J.D.

Though a hotel waitress told her immediate supervisor that a guest sexually harassed her two years before he was banned from the hotel, she did not use the reporting channels set forth in the employee handbook, and the HR department acted promptly to ban the guest once it did learn of the conduct, concluded a federal district court in Texas. Granting summary judgment against her Title VII hostile work environment claims, the court also found that the hotel acted promptly (within minutes) in banning a second guest who behaved inappropriately with her. Her claim regarding a coworker’s offensive statement failed because it was not severe or pervasive. Finally, her retaliation claims failed because there was no evidence the employer took action against her because of her reports of harassment and the employer was not responsible for the alleged retaliation by the coworker, who she claimed poorly prepared food to lower her tips (Johnson v. Hyatt Corp., November 8, 2018, Garcia, O.).

Harassed by guests. The employee claimed three individuals harassed her during her time as a waitress in a hotel bar. First, a guest made sexually explicit comments and advances towards her. She reported his behavior to her supervisor, but no immediate action was taken, and the supervisor did not inform the HR department. On another occasion, a second guest grabbed her, kissed her, and bit her while she was serving his table. She did not immediately report this, but another guest saw and reported the encounter. The employer asked the employee if she wanted to press charges, but she declined. She then called the police, who arrested the guest for assault. The employer banned him from the hotel. As part of the investigation into that incident, the employee told the HR department about the sexually explicit comments from the first hotel guest. The HR department contacted the guest and he agreed not to return to the hotel.

Coworker’s misconduct. Two months later, a cook at the bar told the employee she “look[ed] like a f*cking hooker.” She reported the incident to his supervisor, who asked her a series of insensitive questions (including what she did to provoke the comment). The coworker was issued a reprimand.

Lawsuit. The employee brought hostile work environment and retaliation claims against the employer, arguing that it failed to adequately respond to the incidents. She also asserted that, following the reports of harassment, the employer modified her schedule to give her unfavorable shifts, the coworker’s supervisor subjected her to unjust scrutiny, and the coworker intentionally mis-prepared her food orders so she would receive reduced tip income. The employer moved for summary judgment.

Hostile work environment claim fails. The employer argued that the alleged harassment was not severe or pervasive, and that it had appropriately responded to the conduct. With respect to the first hotel guest, the court found that his harassment could be considered pervasive, because it occurred more than 10 times over two years. However, her claim failed because she could not show the employer did not take prompt remedial action after it received notice pursuant to its anti-harassment reporting policies. Though she quickly reported the misconduct to her immediate supervisor, she waited nearly two years to follow the reporting channels provided by the anti-harassment policy. And then when she did notify HR, the employer took the allegation seriously and immediately implemented remedial measures and kept the guest away from the employee going forward.

The claim regarding the second guest also failed. His conduct was clearly severe, but the employer responded promptly—security appeared less than 10 minutes after the reported assault. Her claim regarding the statement by her coworker also failed because, while the comment was inappropriate and offensive, it was not severe or pervasive.

Retaliation claim also fails. As of the motion for summary judgment, the employee was still employed at the hotel bar. Her retaliation claim failed for several reasons. First, she presented no evidence that her schedule was changed in response to her harassment complaints or any other protected activity. Her assertion that her coworker retaliated against her by mispreparing her food orders could not support her claim because an employer is not generally liable for the retaliatory conduct of a coworker absent a showing that the retaliation was taken in furtherance of the employer’s business. The employee also asserted that she was retaliated against after she reported the coworker; the alleged retaliation came in the form of an “investigation” that attempted to place the blame on her. The court found that although the supervisor’s line of questioning after the employee reported her coworker was insensitive, it was not an actual investigation and was not materially adverse.

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