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HospitalityLawyer.com® converges legal, safety, and security solutions for the hotel, food and beverage, private club, meeting, event, and corporate travel industries.

We are a worldwide network of attorneys that focus on hospitality, travel and tourism issues; a marketing conduit for suppliers of legal, safety and security solutions to reach hospitality developers and operators in need of those solutions; we mitigate critical incidents, injuries, litigation and liability within the hospitality industry, in the U.S. and abroad by facilitating the creation, collection, and dissemination of legal, safety and security information, products and services.

WEEKLY SPOTLIGHT

Attorney of the Week
Jordan B. Schwartz

At Conn Maciel LLP, Mr. Schwartz advises employers on a wide range of complex employment-related issues and advises properties regarding all aspects of compliance with the Americans with Disabilities Act (ADA). He defends employers against claims of discrimination and harassment, misappropriation of trade secrets, and wage and hour violations. He also counsels employers on all aspects of the employer-employee relationship. His practice includes the following: Title III of the ADA. Mr. Schwartz represents property owners and managers against claims brought by patrons alleging lack of accessibility under Title III of the ADA. Mr. Schwartz routinely conducts on-site inspections of properties and modifies their policies and practices to ensure compliance with the ADA. Mr. Schwartz also specializes in ensuring that company websites comply with all applicable ADA requirements.  Mr. Schwartz has extensive experience advising on and defending against claims under the Fair Labor Standards Act and state wage and hour laws, including issues involving minimum wage, calculation of overtime, misclassification of independent contractors, exempt status of employees, meal/rest breaks, tip pooling, automatic gratuities and service charges.

Law Firm of the Week
Cozen O’Connor

Ranked among the top 100 law firms in the country, Cozen O’Connor has more than 750 attorneys in 27 cities across two continents. We are a full-service firm with nationally recognized practices in litigation, business law, and government relations, and our attorneys have experience operating in all sectors of the economy. Our diverse client list includes global Fortune 500 companies, middle-market firms poised for growth, ambitious startups, and high-profile individuals. In an industry built on talk, Cozen O’Connor has made its name by doing. We have built our firm one case, one victory at a time. Our attorneys have impeccable academic credentials and are able to combine intellectual rigor with practicality and efficiency. We provide sophisticated, business-minded advice aimed at one simple goal: getting the right result for our clients. No matter how complex, contentious, or critical the undertaking, we persevere until the job is done. What you’ve built, we can defend. What you envision, we can help construct.

Company of the Week
Alvarez & Marsal

We are the consulting firm known for asking tough questions, listening well, digging in and rolling up our sleeves. We are fact-driven and action-oriented. We move our clients forward, to where they need to be. We are A&M. Alvarez & Marsal (A&M). Uncover and implement the right solution, at the right time, in the right way. A&M provides global leadership, problem solving and value creation for companies across industries and around the world. We work as advisers, interim leaders and partners who tell you what you need to know, not always what you want to hear. Rapid diagnosis, exacting action, practical solutions and on-site leaders. Complex problems, shifting demands and tumultuous business environments make today’s high stakes even more dangerous. Our operational heritage helps us decipher your challenges, as our commitment to value creation identifies new opportunities. Always at the ready, we stand with you.

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Subscribe to our CONVERGE Blog and Newsletter for valuable insights from hospitality and travel risk management experts. Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

The Latest from Converge...

Our CONVERGE BLOG focuses on legal, safety, and security challenges for Hospitality, Travel, Travel Vendors and Corporate Travel Buyers as individuals and businesses.
Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

On the Basis of Personal Appearance

As you know, Title VII of the Civil Rights Act of 1964 (Title VII) is one of the principal federal statutes prohibiting employment discrimination. It prohibits discrimination on the basis of race, color, national origin, religion, and sex (including gender and pregnancy). Other federal statutes that prohibit employment discrimination include Title I and Title V of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA). But, employers must also be aware of state and local laws that extend protection beyond these federally protected classes. In the District of Columbia, for example, it is a violation of the law to discriminate on the basis of personal appearance, a category of protected class that has caused employers significant confusion with respect to what kinds of dress and grooming policies they may lawfully enforce. So what does personal appearance discrimination mean? And what should employers do to minimize their legal risk and ensure they do not run afoul of such laws?

Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C. Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. To flesh this out, the D.C. Office of Human Rights, which administers the DCHRA, issued enforcement guidance in September 2017 to provide an explanation of this less understood protected category. It clarified that a person may not be discriminated against based on the individual’s actual or perceived “personal appearance,” which means employers may not refuse to hire someone, for example, because the individual wears a head scarf or has dreadlocks. The guidance document even provides an illustrative example of this. It states that, if Michael has a beard and applies for a job as a receptionist of a business office, where the job announcement requires applicants to have 3-5 years of experience and Michael possesses 5-6 years of experience as a front desk receptionist, the business employer cannot refuse to hire or consider Michael, a qualified applicant, because of his beard.

But, there are some limits to this rule. As the enforcement guidance makes clear, an employer can establish requirements for cleanliness, uniforms or other standards as long as the established standard is for a reasonable business purpose (e.g., for maintaining the health and safety of all individuals) and applied uniformly to everyone. This is often referred to as the “prescribed standards” exception, and is successfully argued by showing the following three elements: (1) the existence of prescribed standards; (2) uniform application of the standards to a class of employees; and (3) a reasonable business purpose for the prescribed standards. So, in our example, if Michael is hired, in most cases, the business employer may require that Michael adhere to the company’s established grooming standards along with all other employees, unless Michael has a religious reason for his beard. Unfortunately, however, the enforcement guidance, while certainly helpful, may have oversimplified this exception.

In the real-life context, employers have asked some tricky questions. What qualifies as a “reasonable business purpose”? How specific or broad should prescribed dress and grooming standards be? And what if we do not enforce the standards all the time because we have a lax enforcement policy or inadvertently miss a case or two? While advice from legal counsel can provide tailored answers to the first two questions, what is nearly certain about the last is that, if an employer does not enforce its dress and grooming standards, it is opening itself up to major legal risk. This is because, as described above, uniform application is a required element for employers to claim the “prescribed standards” exception. Furthermore, personal appearance discrimination claims are subject to the McDonnell Douglas burden-shifting framework that we described in a prior post. That is, if a plaintiff alleges employment discrimination through the use of indirect evidence, the plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gave rise to an inference of discrimination. One way for a plaintiff to demonstrate that an unfavorable action gives rise to an inference of discrimination is to present evidence of disparate treatment. This is often done by showing that she was treated differently than similarly situated employees outside of her protected class. Accordingly, if an employer does not enforce its dress and grooming standards consistently, it makes plaintiff’s case stronger, which is at least one reason why strict enforcement of such standards is so crucial.

Furthermore, although only a small number of jurisdictions extend anti-discrimination protections to personal appearance, this area of law is growing and is often intrinsically connected to other protected classes. For example, the New York City Commission on Human Rights (NYCCHR) issued new guidelines in February 2019 stating that employer policies on grooming and appearance that target, limit, or otherwise restrict natural hair or hairstyles may be unlawful and could result in a penalty of up to $250,000 per violation. This is because NYCCHR determined that black hairstyles are an inherent part of black identity, and therefore, should be protected racial characteristics. The guidance notes that protections extend to the right to maintain “natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” While the guidelines specifically focus on black communities, the protections extend to other groups, including those who identify as Latin-x/a/o, Indo-Caribbean, Native American, Sikhs, Muslims, Jews, Nazirites, and/or Rastafarians.

So what can employers do to minimize their legal risk and ensure they do not run afoul of any anti-discrimination personal appearance laws? As noted above, advice from legal counsel will assist in determining whether an employer’s business purpose is reasonable under the law, and whether its prescribed dress and grooming standards are written in a way that best shield the employer from potential claims. This is often done through a review of the employer’s dress and grooming standards in its employee handbook. Typically, a broader set of standards with legally protected carve outs (e.g., for religious and disability accommodations, health and safety concerns, etc.) is advisable. It is also prudent to enforce the standards uniformly and consistently. Other concerns, such as keeping the standards gender-neutral, should also be considered.

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Risk Mitigation Measures for LGBTQ Personnel

Discussing sexually sensitive subject matter with students or employees ensures their awareness of and mitigates associated risks. Different countries present different societal attitudes on issues such as public displays of affection, projection of sexuality in dress and mannerisms, and LGBTQ concerns; traveler safety and health depend on those travelers receiving accurate and timely information about their destination. As a result, travel and risk managers need to be comfortable having a conversation with their travelers that involves human sexuality. These conversations must be handled delicately to avoid violating privacy, causing offense, or being insensitive to private issues. That said, there are compelling global security and health concerns that make this aspect of duty of care imperative for organizations.

Start the Conversation
The reality is that many areas of the world still heavily discriminate against the LGBTQ community and criminalize expressions of sexuality. Travel and risk managers do not necessarily need to know the sexual preferences or sexual identities of their travelers to counsel them about the cultural and societal attitudes present at their destinations. Presenting a comprehensive overview in a matter-of-fact manner can side-step the need to pry into a person’s personal life while also setting up an environment conducive to deeper conversations and questions as necessary.

Understand LGBTQ Health Risks
Healthcare options may be especially limited for transgender individuals, who may need specialty medical care at their destination. These individuals may struggle to find needed medications or obtain a refill should they run out. Anti-hormone transition drugs suppress levels of testosterone to allow estrogens to take prominence but may have adverse effects on the heart. LGBTQ individuals may encounter challenges finding medical care and may be dissuaded from providing a complete medical history in areas that present a high threat for LGBTQ patients.

Most countries restrict the amount of medication travelers can enter with according to the length of the stay. In many instances, a maximum of 90 days of prescription medication may cross borders.

For expatriates, having a doctor’s note on letterhead, with the patient’s full name, medication name, dosage, and reason are required for refills and importation of prescription medication to many countries. The reason (diagnosis) may be especially challenging if traveling to a conservative country with a known low tolerance for the LGBTQ community and may present security challenges.

Surgery of any kind increases the risk of blood clots during flight. LGBTQ patients who have recently undergone surgical procedures should ensure adequate time between surgeries and flights. Some hormone therapies (especially estrogens) also place patients at risk for deep venous thromboses (DVT): blood clots that form in the legs and may become life-threatening if the clot or part of the clot travels to the lungs.

In more socially liberal countries, unconscious bias from healthcare workers may lead to substandard care. LGBTQ individuals need to be prepared to encounter these attitudes and be able to advocate for their care and proper treatment. Risk managers and travelers should research cultural tolerances and potential biases to determine if an advanced arrangement with a “preferred” treatment center is necessary.

Key Takeaways
Ensuring the safety of your LGBTQ personnel and students starts with a conversation. Transgender travelers require a duty-of-care policy that helps them prepare for the challenges they may face abroad. Ensuring the safety and health of these unique travelers is a corporate responsibility.


About WorldAware
WorldAware provides intelligence-driven, integrated risk management solutions that enable multinational organizations to operate globally with confidence. WorldAware’s end-to-end tailored solutions, integrated world-class threat intelligence, innovative technology, and response services help organizations mitigate risk and protect their people, assets, and reputations.

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Developing a New Approach to Harassment Prevention in the Era of #MeToo

Based upon 25 years of litigating harassment claims, and more than 20 years of training managers on harassment avoidance, I have reached a simple, and perhaps obvious, conclusion – that is, the “traditional” anti-harassment training used by most employers simply do not work. Whether training occurs online or in person, it almost always starts with a legal definition, a discussion of the different types of harassment, and ends with various “common” scenarios for employees to ponder. Despite providing such training year in and year out:

  • in the last 10 years, Title VII filings involving harassment have increased by nearly 700%;
  • nearly 50% of women report experiencing some form of harassment at work at least once;
  • according to a recent NY Times poll, nearly 1/3 of men reported doing something at work within the past year that would qualify as objectionable behavior or harassment; and
  • on October 15, 2017, Alyssa Milano tweeted a request to reply if you have been sexually harassed or assaulted, and she received over one million mentions – by the next day.

And one can hardly forget the steady stream of business executives, entertainment moguls, and political leaders scandalized their organizations with outrageous details of men behaving badly. So where have employers, and those who work with them to get it right, gone wrong? Why are the herculean efforts of HR departments calming the rising tide of harassing behavior?

The answer is that we are focusing too much on what not to do under the law (and what we have to do to have a potential defense to liability), rather than providing employees and their managers with tools on how to create positive work relationships and foster psychological safety in their work groups. To be sure, harassing behavior is more than the product of a bad employee; it is symptomatic of a toxic work environment. In such environs we often find:

  • An obsession with making the numbers, where outcomes are uncritically adopted;
  • Recruitment, promotion, and reward systems focus on individuals’ “strength of personality” or interpersonal aggressiveness while ignoring emotional intelligence;
  • Short-term planning governs operations;
  • Executives give higher priority to personal friendships than to legitimate business interests; and
  • Fear is a dominant, desired workplace emotion, whether deliberately engineered or inadvertently created.

Although there can be much discussion on the cultural causes of sexual harassment, what is clear is that workplace harassment allowed to ferment is the source of serious liability to business. It can be a sales dropping, share price lowering, brand tarnishing business killer. The #Metoo movement is a paradigm shift and call for a new approach to tackle this problem.

The good news is that we have a number of innovators who are solving parts of the problem, and their work can be brought together to form a new training regime that works to prevent harassment. I commend to you Professors Christine Pearson and Christine Porath and their work, “How incivility is damaging your business and what to do about it.” Leonardo Inghilleri’s work on training empathic skills to hospitality employees, and of course Google’s Project Aristotle and its steps for developing effective teams.

So, what is working? Training that includes protocols which teach employees and more importantly managers on how to foster good working relationship in their workgroups. We recommend revamping sexual harassment avoidance training to include 6 protocols.

  1. Developing an employee “how can I help you” culture;
  2. Techniques to project empathy or at least the appearance;
  3. Routine steps to handling any employee concern;
  4. Managing the unexpected;
  5. Using the most respectful language possible with random acts of kindness; and
  6. Bystander training.

A prevention program built around these principles will help employers to do more than just comply with the law – it will reinforce the notion that everyone plays a critical role in preventing workplace harassment (or any other kind of misconduct for that matter) and creating a successful workplace culture. It will also empower employees with the tools to step in and stop it. These, in turn, will help employers to achieve their business goals – from decreasing harassment occurrences to improving performance and morale. It is hard to argue against such benefits. It is clear, change is rapidly occurring and this next generation workforce is not silent.

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Traveling Can Be Dangerous to Your Health! Maintaining Balance for Business Professionals Who Travel

recent study from Harvard Business Review highlights the impact business travel has on employees’ health and suggests that “…if you have employees who are often between cities, you owe it to them to provide the education, information, tools and resources so they can maintain healthy lifestyles while on the road.”

Here are a few stats around business travel:

  • 20% loss of overall productivity due to travel
  • 92% higher risk of obesity for those traveling more than 21 nights per month
  • 6.9 hours of productivity lost per trip due to stress
  • Strong correlation between frequent business travel and physical and behavioral health risks

Travel Stress Index: The Hidden Costs of Business Travel, CWT

Let’s talk about a few key things that you can do as a business traveler to help reduce stress:

Hydration…Yes, Again
From a personal health perspective, you already know how important staying hydrated is, but are you doing it? The typical water target of half your body weight in ounces is a great place to start, but the key is in actually implementing this so that you are drinking water throughout your day. Make sure that you are drinking purified water, as you want to help your body to detoxify. You either use a filter or you body will become the filter.

Proper Breathing
Proper breathing means that you are breathing deeply, down below your belly button (you might put your hand there as you practice), while keeping your chest relatively still. Try inhaling for 4 seconds, hold for 4 seconds and exhale for 4 seconds. This will help to activate the calming side of your nervous system (called the parasympathetic nervous system) and reduce stress in a big way. In fact, all of the best stress reduction systems (e.g. Tai Chi, Yoga, Qi Gong…) have deep breathing at their core.

Best Fuel Possible
Most people that own an expensive car would never think of putting the cheapest fuel in it. Your body is WAY more valuable than any car, so make sure that you are giving it the best fuel possible. I understand that there are times when it makes sense to cheat and eat the not-so-good-for-you foods, and that’s OK…as long as it’s in moderation. Shoot for the 80/20 rule (80% of the time eating as healthy as you can). 

What does that look like given our culture’s fascination with the diet trend of the month? In general, eat things that grow. My recommendation is the Mediterranean diet as it’s stood the test of time. The trick is to eat:

  1. Good quality fruits and vegetables (organic where possible)
  2. Whole grains (very small amounts, if any) and 
  3. Healthy fats (natural ones – coconut oil, avocado, olive oil, walnuts, macadamia nuts…). Also make sure to get your Omega 3 essential fatty acids from fish, flax or other sources. Whenever you see the word essential with regard to nutrition it means that your body can’t make it on its own…you have to eat it. These particular fats are crucial to building healthy cells in your body.
  4. We really don’t need as much protein as you might think (depending on your lifestyle), so add some in the form of beans, nuts, lentils (if vegetarian) and/or good quality meats (organic, grass-fed) or eggs..

Stress Management
The reality is that we cannot control what happens to us, but we do have a big say in how we respond. Your first go-to response to any major stressors should be to breathe deeply. This will go a long way in helping your body process whatever is going on. Each of us has a favorite activity (or non-activity) that helps us to release stress. Examples include yoga, cooking, running, reading, etc. The key is to make sure you have this activity scheduled on your calendar and keep the commitment, as this is a priority, especially these days!

While I list cooking and reading as possible stress reduction activities, please know that movement is a requirement for true stress reduction. While it’s great to rest your brain with these types of activities, your body really wants to move. This doesn’t mean that you have to schedule an hour at the gym (though there are definitely benefits to weight lifting, aerobic exercise…), as simply walking can be all that you need to help with stress reduction. Many events already give us this option as we are walking quite a bit!

The other factor to consider about stress is technology. Yes, there are the typical social media challenges around looking at other people’s highlight reels that can move you toward frustration with your life, but I’m talking about something else. The EMFs (Electro Magnetic Frequencies) that are invisible yet have a HUGE impact on your body. 

Our bodies are way more electrical/energetic than we know and are sensitive to the constant barrage of these waves (think Wi-Fi, cell signals, cordless phones…). Your best approach is to keep your phone away from you as much as possible, and if you must keep it in your pocket, put it in airplane mode. This especially applies at night, where you’ll want to put your phone in airplane mode and keep it at least six feet away from your head. This one thing alone can improve your sleep.

Another great way to balance EMFs and help you body to recharge is to get outside into the sun, with bare feet on the earth. I know this might sound a little strange at first, but there is significant science that shows that we need the frequencies from the planet to function at our best. Give it a try and let me know…just 15 minutes a day can go a long way in helping you balance challenges such as anxiety or inflammation. You might consider doing this at a break when you are at the event.

Clean Your Filters
Your body is designed to filter out the toxins that you encounter in your everyday world. However, your body was NEVER designed to deal with the unbelievable amount of toxicity on our planet today. The main sources of toxicity are from:

  1. The food we eat – pesticides, herbicides, GMOs (Genetically Modified Organisms), heavy metals, additives, preservatives, etc.
  2. The air we breathe – pollution, huge increase in pollen, mold, artificial scents (think plug-ins, candles…), etc.
  3. The water we drink – prescription drug residues, heavy metals, chlorine, fluoride, etc.
  4. Prescription drugs – these are often stored in your body for longer than you know

Your body is always trying to cleanse itself, but when it gets overloaded, it can result in issues with your organs of detox (liver, kidneys, colon…). 

Consider working with a natural health practitioner to begin a detox program to get things started on the road to better wellness.

Travel
Travel adds a new level of stress to what we’ve already covered and requires a few more healthy choices. You must plan ahead to reduce as many travel stressors as possible. Some examples include:

  1. Bring food/water with you if you can – especially when driving. This helps with the inevitable roadside stops that can result in unhealthy snacks.
  2. Be sure to pack some “just in case” supplements that you might need to help with issues around sleep, illness and digestive challenges.
  3. If you are driving, consider getting a bottle of good quality peppermint essential oil. This can be very helpful to smell if you start to feel drowsy when driving.

Your body is always trying to heal itself…all the time! Our mission is to make life choices that will support this and give it what it needs (nutrition, air, water, movement…) and take away things that are hurting it (low quality foods, shallow breathing, sitting all day, dehydration). 

When you care for yourself, you are not only looking out for your own health, but you’re also putting yourself in a position to perform best for your team, customers and the overall event success.

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