Smacks On The Butt And Sexist Jokes Or Innuendo: The Workplace Of A Server

News item from Canada: an academic study has found that “Female servers have to put up with a lot of sexual harassment on the job.”  The study “found low wages and a dependence on tips makes some female servers more vulnerable to sexual harassment from customers and colleagues.”

Unfortunately, no surprise, but lets focus in on “vulnerable” workers.

I have written a lot about the six strategic enforcement priorities set out in the EEOC’s Strategic Enforcement Plan (“SEP”), which includes protecting “vulnerable” workers, such as immigrant and migrant workers.   Remember Henry’s Turkey – the company that exploited vulnerable, intellectually challenged and disabled workers by, among many other things, paying them $65 a month to eviscerate turkeys?  The case that was settled by the EEOC for $5,000,000.  I dubbed Henry’s “the poster bird for the abuse of intellectually disabled employees.”

(NB: As I predict in my new article in “Above The Law,” remarks made last week by the new Acting EEOC Chairwoman may signal the the end of this priority – among others, such as LGBT workplace rights).

I posted before that “[w]orkers are ‘vulnerable’ to discrimination and harassment for many reasons and in many situation, mostly evidenced by their powerlessness and the low status of their jobs.  For example they may fear running afoul of immigration laws; they may be unable to speak English; they may be physically isolated in the job, be it in a field or a warehouse; or perhaps they are mentally challenged.”

The Trouble In Canada

The Canadian news report provided comments from the study’s author, as well as current and former servers:

“I heard stories about having to listen to a customer talk about their sex life, having to listen to sexist jokes or innuendo, sometimes even inappropriate touching.  It really is the context of the work place and the work environment that’s a contributing factor that makes women more vulnerable to enduring these experiences as part of their work.”


“I’ve seen other girls too who’ve taken like their hand being grabbed and like smacks on the butt just to put up with it and see if they get a tip out of it … And you don’t know what your hours are either so you can’t rely on your hours so you have to rely on your tables being good tippers.”


“You’re terrified to go and say anything just because then you have the risk of being let go, or just not having the good shifts, being the black sheep of the staff.”

The Provincial Jobs Minister said: “The Workers’ Compensation Act specifically protects workers from bullying and harassment, has provisions that allow employees to refuse unsafe work and there are protections under the B.C. Human Rights Code to address sexual harassment. Anyone who has a complaint against their employer regarding employment standards, including in relation to the minimum wage and the liquor server wage, can call the Employment Standards Branch.”

Takeaway:  I’ve said this before – many times. 

Employers should understand that, from the top down, an anti-discrimination and anti-harassment tone and policy must be set, and all management personnel as well as line workers must be trained and educated in the basics of discrimination and harassment law, and compliance and its application in the workplace.

Employers should not tolerate discrimination or harassment in any form, and must make it clear by words and deeds that employees have the right to complain about such acts and that their complaints will be heard, investigated and, if good cause is found, remediated promptly.


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]