By Roland Leiser
In a recent panel that focused on the #MeToo movement during Georgetown University’s Hotel and Lodging Legal Summit, attorneys explored hypothetical events to highlight issues of alleged sexual harassment, how to deal with them and how much “unconscious bias” or even bias might play a role.
The 7th annual event, which attracted 334 participants, was held at the University’s Law Center in Washington, DC. In addition, the panel’s agenda also probed if confidential settlements of sexual harassment are “now taboo in the post-Weinstein era,” referring to misconduct allegations against movie executive Harvey Weinstein. Further, the agenda would examine the role of attorneys to “report and investigate harassment and other unprofessional conduct.”
Carolyn Berger, senior counsel, employment and benefits at Hilton Hotels, and Heidi Gunst, counsel, employment practices and benefits at Interstate Hotels & Resorts, spoke on the panel entitled "#MeToo, Unconscious/Implicit Bias, and Professional Conduct," moderated by Allison Martin Rhodes, Holland & Knight.
“#Me2 is clearly on top of all our minds. How can you have a conference without it?” Erica Hageman, executive vice president & general counsel at Interstate Hotels and program co-chair said before introducing Stuart Teicher, a law educator and lead-off speaker.
The American Bar Association, Teicher noted, incredibly took until 2016 to approve a code of ethics on harassment and discrimination, but it was still “ahead of the curve.” It was adopted before the #MeToo movement and the Weinstein case of alleged sexual harassment or being “forced to do so by public opinion.”
Relating a real incident, Teicher said a woman attorney, an experienced mediator and arbitrator, planned to address a conference. When she arrived at the hotel to register for the event, the desk clerk asked her to sign in while she looked for the attorney’s name tag. But the clerk told a male behind her that she would sign him in while retrieving his badge. Needless to say, the female lawyer thought that ’’the “male got special treatment,” and was unhappy about it. Teicher described the clerk’s action as “unconscious bias but there was something in her background that made her react differently to the man than to the woman.”
The three female panelists who followed Teicher reviewed some scenarios of discrimination and harassment. Moderator Rhodes, for example, described a situation where a security guard allegedly spied on a "high profile" guest in a hotel spa's locker room, but there were no witnesses or video evidence. The guard said he was planning to disclose his presence, per company policy, and to shut the locker room door. Growing angry, the guest threatened to go public if "something wasn’t done.” This wasn’t the first alleged incident of the guard’s misconduct, as noted in his file, as he had once “forcibly removed a drunken female from the lobby.” The hotel fired him but gave him a severance package with a release from future claims and confidentiality, triggering comments on such an arrangement.
It would be “customary to have a confidentiality agreement," said Interstate's Gunst, but Rhodes asked "why would you want one?" Hilton's Berger took the question and said, “to protect the reputation of the company." Rhodes pressed on to ask Gunst if she “would hire this guy?” She said, "probably not."
Panelists asked should hotel counsel approve a termination settlement without a confidentiality agreement, or should it require one for any alleged sexual misconduct? Significantly, Rhodes asked “would confidentiality agreements result in serial offenders?”
In another scenario, according to Rhodes, a hotel’s asset manager ogles a female staff lawyer at a meeting and “stares at her coming and going.” He “comments on her figure” to the male lawyers still in the room. The manager was widely known by the women employees who were told to "keep their distance from him." Berger of Hilton noted, however, that “we try to create a culture with a comfort level.”
In a fourth incident, a female employee contacted the hotel’s legal department with a complaint that the general manager had sexually harassed her, but nothing was done about it. The employee, the human resources (HR) director said, was on final notice to be fired for excessive absences. At the same time, HR had known the general manager a long time, and she could not imagine that he could act inappropriately. The employee had previously made unproven complaints to the company's hot-line and was considered a problem.
Did he do it or not? In-house counsel's job, said Rhodes, is set up independent fact-finding, not pre-judge, and "leave our own biases at the door." This question focused "how unconscious bias" might enter the investigation, added Rhodes. Since the HR director knew the GM for years, she blew off the complaint with a "so don't worry, he's great."
Hilton’s Berger said this scenario “is similar to what we’re hearing in the #MeToo movement, which is the power imbalance. No matter what their status in a company, everyone should be treated equally.”