Hospitality employees are expected to provide good service even when customers are difficult. Servers, bartenders, hotel employees, hosts, housekeepers, and other workers may regularly deal with demanding guests, complaints, and uncomfortable interactions.
But providing customer service does not require employees to tolerate sexual harassment.
A customer may repeatedly make sexual comments to a server, ask invasive questions about an employee’s body or dating life, make unwanted advances, or deliberately touch an employee. A hotel guest may make sexual remarks to housekeeping staff each time they enter a room. A regular patron may repeatedly target the same bartender despite being told to stop.
When management knows that this conduct is occurring but continues sending the employee back to serve the same customer without taking meaningful action, the problem can become more than an unpleasant customer interaction.
California law recognizes that workplace harassment can come from people who are not employees. The California Civil Rights Department explains that an employer may be liable for harassment by a nonemployee, such as a client or customer, when the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action.
For hospitality workers, that protection is especially important because interacting with customers, guests, and patrons is often an unavoidable part of the job.
Questions involving employer liability for customer harassment in California therefore frequently focus on what management knew, when it knew it, and what the employer did after learning about the conduct.
Responsibility of Employers When Facing Workplace Sexual Harassment
California employers have an affirmative obligation to take reasonable steps to prevent and correct workplace harassment. California’s Civil Rights Department also requires employers to maintain policies and procedures for responding to complaints, conducting prompt and fair investigations, and taking appropriate remedial action.
Those responsibilities are not necessarily limited to misconduct committed by supervisors or coworkers.
A customer, guest, vendor, contractor, or other third party can create a hostile working environment. California guidance specifically states that employers may be liable for harassment by nonemployees when management knew or should have known about the conduct and failed to take immediate and appropriate corrective measures.
This can be particularly significant in restaurants, bars, hotels, casinos, resorts, and similar hospitality businesses where employees regularly interact with members of the public.
Consider a restaurant where a regular customer repeatedly makes sexual comments toward the same server. The server tells a manager several times that the behavior makes her uncomfortable. Instead of intervening, the manager says the customer spends a lot of money and tells the server to ignore the comments.
If the behavior continues, management’s knowledge and response may become important.
The same problem can arise when a guest repeatedly touches a hotel employee, sends inappropriate messages to staff, or makes sexually explicit comments whenever a particular worker is assigned to assist them.
Employers are not expected to control every statement a customer makes before it happens. The legal issue may instead focus on how the employer responds once it knows, or reasonably should know, that harassment is occurring.
Repeated Complaints Can Put Management on Notice
Repeated complaints are especially significant because they can show that management had an opportunity to address the problem.
An employee might initially tell a shift supervisor verbally. The customer returns several days later and behaves the same way. Another employee later complains about the same patron. If management continues allowing the behavior without meaningful intervention, it becomes increasingly difficult to treat each incident as isolated.
Management knowledge does not necessarily require a formal written complaint.
A supervisor may personally witness the harassment. Coworkers may complain about the same customer. A manager may see inappropriate messages sent to an employee. Security may have previously responded to an incident involving the customer.
All of these circumstances may be relevant in determining whether the employer knew or should have known that a problem existed.
California’s harassment-prevention framework emphasizes that employers should provide a complaint process, respond promptly, investigate allegations fairly, and provide appropriate options for remedial action.
What constitutes an appropriate response can depend on the circumstances.
An employer might warn the customer that the behavior is unacceptable, assign another manager to handle the customer, increase security, prevent the patron from interacting with the targeted employee, remove the customer from the property, or prohibit the person from returning.
The precise response may vary. What matters is whether the employer takes reasonable measures designed to stop the harassment rather than simply requiring the employee to continue enduring it.
An employer’s level of control over the situation can also be relevant. A restaurant may have the ability to refuse service to a patron who repeatedly harasses workers. A hotel may be able to intervene when a guest targets an employee. Management may also be able to rearrange an interaction without penalizing the employee.
Simply telling the employee to tolerate repeated customer harassment because “the customer is always right” may leave the underlying problem unresolved.
How to Follow Up with Your Employer on Harassment Complaints
Employees who have already reported customer harassment should consider documenting what happens next.
Whenever possible, it can be helpful to create a written record of the complaint.
If the employee initially reported the misconduct verbally, a follow-up email to a manager or human resources department can confirm what was discussed. The communication does not need to be lengthy. It can identify the customer or guest involved, describe the conduct, state when it occurred, identify witnesses, and note any previous reports.
Employees should consider preserving:
- Emails or text messages reporting the harassment.
- Messages from the customer or guest.
- Work schedules showing repeated assignments involving the same person.
- Incident reports or security reports.
- Names of coworkers who witnessed the behavior.
- Dates of prior complaints to supervisors or managers.
- Any response received from management.
- Notes documenting additional incidents after the complaint.
A factual timeline can be especially useful when the harassment occurs repeatedly.
For example, an employee might record that the same customer made sexual comments on three separate visits, that management was notified after the first two incidents, and that the employee was nevertheless assigned to the customer’s table again.
Employees should also document what the employer did after receiving the complaint.
Did a manager speak with the customer? Was security notified? Was the employee told they would no longer be required to serve that person? Did management investigate whether other employees experienced similar behavior?
Or was the employee simply told to deal with it?
The distinction may be important when evaluating whether the employer took reasonable corrective measures.
Employees should also watch for retaliation.
A worker should not be punished simply for complaining about conduct they reasonably believe constitutes unlawful harassment. California law prohibits certain retaliation connected to complaints about workplace harassment and discrimination.
If shifts are suddenly reduced, desirable assignments disappear, discipline begins, or employment ends after a harassment complaint, employees should consider preserving records showing how their treatment changed.
How an Employment Attorney Can Keep Your Company Accountable
An employment attorney can help determine whether a hospitality employer responded appropriately after learning about customer harassment.
The analysis often begins with notice.
An attorney may ask when management first learned about the conduct, who received the complaint, whether anyone else complained about the same customer, and what steps the employer took afterward.
Evidence showing a pattern can be particularly important.
A restaurant may claim that it had no reason to believe a patron posed a problem. But if several employees previously complained about the same customer, internal emails, incident reports, or witness statements may show that management was already aware of the behavior.
An attorney may also evaluate whether the employer’s corrective measures were actually effective.
For example, management may say that it warned a customer. But if the harassment continued and the employer repeatedly required the same employee to serve that individual, additional questions may arise about whether the response was sufficient.
California’s Civil Rights Department has emphasized that employers have a duty to take reasonable steps to prevent and promptly correct harassment. It has also pursued cases alleging that management knew about repeated harassment but failed to investigate or appropriately limit the employee’s exposure to the alleged harasser.
Relevant evidence in a hospitality case may include schedules, reservation information, customer records, security footage, incident reports, complaints from other employees, emails between managers, and workplace harassment policies.
An attorney can also evaluate whether the employee experienced retaliation after complaining.
Potential remedies depend on the facts and claims involved. California’s Civil Rights Department may investigate workplace harassment or retaliation complaints within its jurisdiction, and potential outcomes can include monetary damages, changes to workplace policies, training, or orders prohibiting unlawful practices.
In general, California employees have three years from an alleged unlawful employment practice to file a complaint with CRD, although the applicable deadline can depend on the particular circumstances and other claims may have different limitations periods.
Speaking with an employment attorney can help an employee evaluate those issues and determine what evidence should be preserved.
Conclusion
Hospitality workers may have to deal with demanding customers, but sexual harassment should not be treated as part of the job.
California law can hold employers responsible for harassment committed by customers and other nonemployees when management knew or should have known about the conduct and failed to take immediate and appropriate corrective action.
That makes an employer’s response especially important when harassment happens repeatedly.
Managers should take complaints seriously, investigate when appropriate, document reported misconduct, and consider reasonable measures designed to stop the behavior. Requiring employees to repeatedly serve a customer who is known to sexually harass them may create additional risks for both the employee and the employer.
Hospitality workers experiencing repeated customer harassment should consider documenting each incident, identifying witnesses, preserving communications, and following up on verbal complaints in writing.
When questions arise about hospitality employer obligations, an employment attorney can evaluate what management knew, whether its response was reasonable, whether similar complaints had previously been made, and whether the employee experienced retaliation after speaking up.
Customers may be important to a hospitality business, but an employer’s desire to keep a profitable guest or regular patron should not come at the expense of an employee’s right to work without sexual harassment.
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