As the nation pays greater attention to sexual harassment in the workplace, hotel maintenance employees are finally gaining a platform to talk about what they have endured. Several recent high-profile lawsuits have sought to address the alleged sexual harassment of housekeeping workers by hotel managers and other employees. Many housekeepers face another problem, however—sexual harassment by hotel guests. Employers may be held liable for acts perpetrated by customers, but New York City sexual harassment plaintiffs must prove that the employer knew or should have known about the harassment and failed to act. This can be particularly difficult in the context of hotel maintenance, in which employees may find themselves alone with a guest in the guest’s room. Measures like panic buttons may help address the issue, but the sheer scope of the problem suggests that much work is left to be done.
Sexual harassment is considered a form of sex discrimination under statutes like the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964. One of the main forms of sexual harassment covered by these laws occurs when unwelcome sexual conduct creates a hostile work environment that interferes with an employee’s ability to do their job. In order to assert a claim for a hostile work environment created by one or more customers, a plaintiff must be able to “show that the employer either knew (actual notice) or should have known (constructive notice) of the harassment and failed to take immediate and appropriate corrective action.” Watson v. Blue Circle, Inc., 324 F. 3d 1252, 1259 (11th Cir. 2003).
The hospitality industry presents additional challenges for plaintiffs. In a practical sense, identifying guests who sexually harass hotel employees can be difficult because of “plausible deniability”—it is usually the employee’s word against the guest’s. This makes investigations difficult and puts a hotel in a position of choosing between an employee and a paying customer. In a legal sense, hotels and other lodging-related businesses have a particularly high duty of care toward their customers. “A hotel…has a duty to use due care to protect its guests against foreseeable hazards, including criminal acts.” Shadday v. Omni Hotels Mgt. Corp., 477 F. 3d 511, 512 (7th Cir. 2007).