Article | Category: Human Resources

HARASSMENT & DISCRIMINATION WORKPLACE AWARENESS

RECOMMENDATIONS FOR BEST PRACTICES


Prohibiting Harassment in Spa

Harassment in the workplace, including sexual harassment, has become a serious area of concern.

As businesses aim to offer wellness experiences, spas are challenged to ensure they are creating a safe and positive environment for both clients, employees, and other third parties.

As many employers recognize, adopting proactive measures may prevent harassment from occurring or minimize the risk to the organization in the event that harassment does occur.

Please keep in mind the following is a “Best Practices” guide compiled from voluntary member organization feedback to aid you in creating your own, unique policy that works best for your business.

These recommendations are based only on United States federal law and are provided for informational purposes only and should not be considered legal advice or even fully legally-compliant for your business. ISPA recommends spa owners consult with their attorney to confirm they are meeting the laws within their jurisdiction as they differ based on location, including for international spas and on a state-by-state basis within the United States.

Harassment is categorized as:

  • Harassment is a form of discrimination. The Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age, disability or genetic information.
  • Harassment comes in many forms, including written, verbal, physical, and electronic.
  • Harassment is unlawful when:
    • Enduring the offensive conduct becomes a condition of employment
    • The conduct is severe or pervasive enough to interfere with an employee’s work performance and creates an “intimidating, hostile, or offensive” work environment
  • Sexual harassment often takes the form of unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. There are two main types of sexual harassment:
    • Quid pro quo sexual harassment
      • Quid pro quo sexual harassment occurs when a supervisor or other person with authority over an employee tells (encourages) that employee to comply with a demand in order to receive something in return.
      • The offender generally must have the power, or the employee must believe the offender has the power, to take some aspect of employment like benefits or compensation, contingent on the employee’s acquiescence to the offender’s advances.
    • Hostile working environment harassment
      • Hostile working environment harassment does not necessarily involve a direct threat.
      • It involves unwelcome language or behavior that “poisons” the work atmosphere such as sexually explicit jokes or language.
    • Sexual harassment is a form of gender discrimination and the law protects against not only opposite-sex harassment, but also same sex harassment.

 Conduct considered to be harassment is as follows:

  • Repeated offensive sexual flirtations, advances or propositions
  • Continued or repeated verbal abuse based on an employee’s national origin
  • Uninvited physical contact such as touching, hugging, patting or pinching
  • Repeated slurs or name calling motivated by an employee’s religion
  • Offensive jokes or comments about an employee’s age
  • Making obscene or offensive gestures or insulting sounds

*Keep in mind – Courts have stated that an isolated comment or gesture usually will not constitute harassment – The totality of the circumstances must be considered, like the frequency and severity of the offending conduct.

Best Practices in preventing harassment in spa

To combat the threat of sexual harassment in your spa, you can follow these crucial practices as a guideline:

  • Provide sexual harassment training for staff
  • Develop and update sexual harassment policies
  • Instate a strict reporting process

While not binding, an employment manual should state the company’s policy on sexual misconduct. Some businesses have taken a “zero tolerance” approach to harassment, including sexual harassment. While there are times that warrant action as severe as immediate termination, spa owners should consider whether such a policy will create a culture where victims will not report their concerns out of consideration for their alleged harasser’s continued employment. ISPA encourages spa owners to speak with local attorneys to help them craft a policy and procedure for investigating sexual harassment claims that is consistent with their current culture and the culture they wish to develop in the future.

Paying close attention to whether or not a hostile environment exists is vital. Generally, the conduct (including asking for sexual favors, sexual touching and offensive language), must be so frequent or severe that it creates a hostile working environment which prompts the victim to come forward with an accusation claim.

Federal law forbids sexual harassment under Title VII of the Civil Right Act of 1964. Title VII covers employers who have employed 15 or more employees for each working day in 20 or more calendar weeks in the current preceding calendar year. State and local laws can provide equivalent or different protections.

Sexual harassment law covers the actions of supervisors, coworkers, customers, and vendors. Depending on the actions, or inaction, of employer and employees, you may be held liable for the actions of such individuals as your management-level employees or even a third-party vendor present in the workplace.

3 key things to keep in mind to prevent harassment

  1. Establish a strong, detailed, written policy regarding sexual harassment in your spa
  2. Consider conducting seminars for all employees explaining your company policy on sexual harassment along with consequences
  3. Take employee complaints seriously and investigate them immediately, remaining impartial and documenting everything

 If and when harassment occurs

  • It is important that a qualified, unbiased investigator conduct a prompt and thorough investigation of any alleged workplace harassment.
  • The first thing the employer should do is consider whether to place the alleged harasser on administrative leave while interviewing all potential witnesses. Again, it is imperative to check your local and state guidelines on implementing effective investigation steps.
  • The EEOC and the courts have made it clear that an employer may be responsible for harassment of employees in the workplace if the employer or any of its agents or supervisory employees knew or should have known of the conduct and fails to take immediate and appropriate corrective action to stop it.

Tips on handling employee harassment complaints

  • Take every complaint seriously. Begin a confidential (need-to-know) investigation promptly. Talk with the complainant, the alleged offender, any witnesses, and anyone else who may have relevant knowledge. Request descriptions of the incident including dates and times from everyone involved. Keep an accurate, contemporaneous written record of every detail of the investigation.
  • (First) Questions to ask the complainant include:
    • Who committed the harassing conduct and what exactly is this individual’s relationship to you?
    • What exactly was the harassing conduct?
    • Do you have any documentary evidence of this conduct such as notes or emails?
  • (Next) Questions to ask the witness (if there are any) include:
    • What did you see?
    • What did the complainant tell you about the alleged harassment and when did the complainant tell you this?
  • (Finally) Questions to ask alleged harasser include:
    • Describe your working relationship with the complainant. What about your social relationship with the complainant?
    • What happened between you and the complainant? Did this happen as the complainant described it?
    • If the alleged harasser denies the conduct, ask, “Do you have any idea why the complainant would make this accusation?”

If the employee’s allegations of harassment are found credible:

  • (First) Discipline the accused harasser consistent with what you stated in your policy. Punishment set forth in policies can range from verbal and written warnings to formal reprimands, suspension, transfer, probation, demotion or dismissal. If your policy is zero tolerance, you may be more limited in the options available. Otherwise, the nature of the offense should dictate the punishment.
  • (Next) If the victim was denied employment opportunities or benefits because of the harassment, you must give the employee rightful status as original employment standing.
  • (Finally) Act to prevent harassment from happening again.  

Penalties an employer may face if he or she is found liable for harassment

  • Under the Civil Rights Act of 1991, victims of harassment (and other intentional discrimination) can now collect compensatory damages for pain, suffering and punitive damages if the employer acted “with reckless indifference.”
  • More specifically, victims can collect compensatory and punitive damages of up to $300,000 depending on the size of the employer’s business.

Spas must be prepared

There will always be some clients expecting and requesting sexual services in the spa. So, spa directors and managers need to make sure systems and procedures are put into place so they can deal with the issues as they arise. The most critical of these involve training your therapists to know how to handle the situation.

If the spa industry wants to implement change regarding sexual harassment, spa directors, managers and owners cannot have any disparity in what goes on day to day. Disparity creates feelings of disempowerment and worthlessness in therapists. And that can become a dangerous trap for a person to use the privacy of a treatment room (and vulnerability of the client) to give themselves the illusion of power through the act of disrespecting another person’s boundaries. 

Hypothetical harassment examples in the spa industry

  • Client as the offender: A client comes in and flat out asks for “a little bit extra” or an obviously sexual request. Politely inform the client that you do not offer those types of services in your spa.
    • Use the “First and Final Warning” tactic – “I’m sorry, but we don’t offer that here. If you continue to ask, I will stop the treatment and leave the room.” Some therapists will threaten to get their managers involved, but it is whatever feels most comfortable and safe to you in that moment.
  • Employee as the offender: Don’t discount the reality that your therapist could be the one accepting, or even initiating, sexual advances. This is difficult as there would be no proof. You couldn’t put a camera in the massage room or bring in a “mystery guest” to see what’s going on behind closed doors, as the sexual harassment, if performed by therapist to mystery guest, would be caused by you bringing in the mystery guest.

Conclusion

The most critical thing for spa directors and managers to do is train and prepare their therapists for when unexpected and unwelcome situations arise. A Best Practices policy must be put into place and taken seriously by all supervisors, managers and staff members to protect the employees and the guests.