Hotels Challenge ‘Blacklist’ Provision of New Hotel Workers’ Law

A provision of I-124 requires hotels to keep lists of guests accused of sexually harassing or assaulting staff. Is it ‘McCarthy-esque,’ or just good practice?

In November, Seattle voters overwhelmingly passed I-124, a measure that aims to protect hotel employees from workplace injury and harassment. In December, a trio of hospitality-industry associations filed suit against the measure. And in late March, King County Superior Court Judge John Erlick heard oral arguments on the case. His decision, he said, will arrive by May 26.

The hotel associations that filed suit are challenging the law on two main points. One: It misled voters by carrying too many disparate pieces of legislation under one roof. Two: It establishes what hotel-industry plaintiffs are calling a “blacklist,” or a provision of the law that requires hotels to keep ongoing lists of guests whom their workers accuse of sexual harassment or assault. The “blacklist” is the element that hotels are particularly concerned about, according to Washington Hospitality Association (WHA) communications manager Jillian Henze.

The new law, now officially dubbed the Seattle Hotel Employees Health and Safety Initiative, stipulates that any accusation a hotel worker brings to management must stay with that particular guest in a hotel database for a minimum of five years. Other hotel employees must be informed of the accusation. And, the law says, if it is given under penalty of perjury or backed by other evidence, hotels are required to ban that guest from the hotel for three years.

Hotels say—and attorney for the plaintiffs Harry Korrell argued vigorously in court—that this unequivocally violates the due process and privacy rights of their guests. Nothing specifically written into the law mandates the involvement of law enforcement in these accusations, though it is encouraged; nor are hotels required to inform accused guests at any point that their names are on such a list, giving them no opportunity to clear themselves of wrongdoing, they argue. This aspect of the law is “an embedded punishment regime on guests,” Korrell said during the hearing. While the list would be internal and likely never leave a hotel’s private files, as city attorney Michael Ryan argued, it’s theoretically possible that the city of Seattle could obtain it, and then it would be open season for public-records requests. “If you don’t know you’re on the list, how do you take steps to prevent the release of that information?… There is no legal justification for publishing unverified, untested allegations of sexual misconduct,” Korrell argued.

Abby Lawlor, a staffer with Unite Here Local 8 who led the campaign for the measure, says she felt the courtroom was too saturated by the whole idea of false allegations. “It was frustrating to see so much on the falsely accused guest, and so little on the experience of women who are harassed and the stigma that they feel when they step forward,” she says. (As we’ve reported, sexual harassment of hotel housekeepers and room servers is, both anecdotally and statistically, prevalent in hotels everywhere). Lawlor would rather these discussions focus less “on what punitive measures workers can currently access” and more on “what hotels can do to prevent harassment from happening in the first place.”

Even before I-124, hotels had the same right to refuse service as any other private business. They can’t discriminate based on a guest’s age, race, sexual orientation, or other factors protected under the Washington State Law Against Discrimination. But they can keep records on bad behavior and refuse services based on that information—and industry insiders say many hotels already do so.

If someone gets into a drunken brawl in the lobby, say, or causes extensive monetary damage to a room, a hotel can note that detail next to a guest’s name, and can legally bar him or her from future bookings. Some hotels might even share those lists with one another, too; according to one former hotel-industry professional, “Get in trouble at a Hilton in Miami, for example, and you may find it hard to get a reservation at a Holiday Inn in Seattle.”

During the court hearing, Judge Erlick dryly noted that he assumed “hotels already have deadbeat lists.” Korrell did not deny it, nor did the Washington Hospitality Association. Still, Judge Erlick expressed his own qualms during the court hearing, calling the list “McCarthy-esque” at one point and questioning whether there were enough protections against false accusations. “A simple accusation: ‘I’ve been harassed.’ Period. The hotel is now required to 86 that guest for three years,” he said. “The person may never show up [again], but is that a constitutional process?”

If Erlick finds that the blacklist element is unlawful, that part of the law could be severed in his late-May ruling. If he finds that the law includes too many disparate parts, and thus violates the city’s single-subject rule for citizens’ initiatives, it could be scrapped entirely.

Elliott Bronstein, spokesperson for Seattle’s Office of Labor Standards (OLS), says that “it’s just very early in the process” of figuring out precisely how the city will implement the law. At some point in May, OLS will offer a public-comment period, and use that feedback to answer any ambiguities and “come up with a set of rules that clarify aspects” of it.

But one thing is clear: While the OLS is tasked with rulemaking, it can do almost nothing in terms of enforcement. The only enforcement mechanism written into the law is a worker’s ability to file suit if she or he believes it has been violated.

“What I worry about a little with this initiative is we have one option, and that is to sue,” says Liz Ford, legal director of the Fair Work Center, a Seattle nonprofit established in 2015 to help residents understand their labor rights and find legal counsel. “Oftentimes for low-wage workers, lawsuits are difficult, mostly because it’s difficult to find a lawyer who will take a case on contingency.” The Fair Work Center does offer legal services for free, she says, and will always offer advice, but “we can’t take every case.”

The hope, for Lawlor and Unite Here Local 8, is that none of that will be needed. One happy result of the law so far seems to be that many hotels are now creating clearer mechanisms for workers to report a guest’s behavior, as well as new trainings on the issue for managers. Until those procedures are truly put in motion, “how well they function is an open question,” Lawlor says. But “we know that at least some hotels have taken those steps.”