WHAT TO DO ABOUT SEXUAL HARASSMENT WHEN THE CUSTOMER IS ALWAYS RIGHT

The customer is always right. I found out about this idea soon after I started working as a hostess, and then moved up to be a cocktail waitress, bartender, and food server. I did this work because the managers offered me the job on the spot, and, I took home quite a bit of tip money as a teenager and during my twenties. During most of the shifts that I worked, men customers engaged in sexist or sexual comments or innuendos. Not once in over 8 years in three different restaurants and bars did I say, “You’re making me uncomfortable.” I wanted a big tip! I also didn’t know what to say, and I certainly didn’t want to tell my managers because I thought it would make them uncomfortable and make me (the employee) look bad. I once mentioned a customer who was touching me too much and my manager said, while rolling his eyes, “What do you want me to do about it?” We received the message that the customer is always right in many ways when management sided with customers, no matter how obnoxious their behaviors.

Most of us have done or will do some kind of service work, which ranges in pay, benefits, tipping practices, expectations, and status. Examples of service work include restaurant server, bartender, flight attendant, and massage therapist. A recent New York Times article describes how workers in jobs where they receive a tip are essentially required to tolerate sexual harassment. The article cites a recent report in which 90% of women restaurant servers reported that they have been sexually harassed. 90%. Service workers are expected to endure behaviors that we might not otherwise allow. Generally, waiters and waitresses are expected to ignore, or even pretend to enjoy sexual jokes and comments from customers. In service occupations, the customers are THE source of profit. Managers and supervisors want customers to return and spend money in their establishments. Supervisors ask staff to “grin and bear it” instead of turning away a customer unless he or she is extremely abusive to employees. If 90% of servers have experienced sexual harassment, why would they do this kind of work? Frankly, some people like service work, and some workers enjoy sexualized banter at work. But people also do service work because there is so much of it available and they need to work. However, since much service work is seen as low-skilled, management often perceives workers as dispensable. Employees in our economically insecure times can’t afford to rock the boat: they want to keep their jobs.

What service workers are expected to tolerate increases in workplaces where sexuality is a part of the work itself. Waitresses at Hooters, Twin Peaks, and of course, erotic dance clubs, engage in performances that are sexual. Some servers and dancers must either sign a contract or follow rules listed in a “handbook” that says that they understand that sex is a part of their job. Erotic dance clubs do have strict rules about the conditions under which customers may touch dancers, but studies show that these rules are often not enforced and women themselves do not feel comfortable confronting sexual behaviors that go too far, particularly working class women who work in “rundown” clubs. Other service workers are especially vulnerable to sexual harassment and harassment based on racism, homophobia, and other forms of inequality even when sex is not a part of their job. As examples, African American women are stereotyped as being hypersexual and thus face sexual harassment in particular gendered and racialized ways. Likewise, lesbians in service work have experienced sexualized stereotypes from heterosexual men that they are “always available”.

What can service workers do about sexual harassment from customers? They actually have little recourse. Employment discrimination law in the United States does not cover sexual harassment by non-employees (customers, clients, or patients). Some of my earlier research involved interviews with doctors and nurses. Many of the women I interviewed (and very few men) described patients leering at them, raising their patient gown to expose themselves, or asking for dates. Patients aren’t customers but my study suggested that similar to bartenders, hostesses, or massage therapists, doctors and nurses must deal with sexual harassment from patients as a part of their job. None of these workers have legal protections from sexually harassing clients. Further, employees who are at or near the poverty level are less likely to refuse or confront offensive behaviors from clients or customers. In workplaces in which most of the workers and customers are heterosexual, gay, lesbian, trans, or queer workers might be more likely to stay quiet about offensive sexualized comments from customers because they know that they are more likely to be fired for speaking up—a problem that is heightened in states that have few or no legal protections against sexual orientation or gender identity discrimination.

All of these examples demonstrate unique forms of harassment that are endured because we prioritize customers’ desires over workers’ human rights. In U.S. culture where the customer is always right, many managers and supervisors do not create environments in which workers feel supported, which is especially problematic since workers of color, women workers, and low-income workers are most likely to be pushed into these low-wage employment opportunities. It is impossible to ask service workers to stand up to sexually harassing customers. They, themselves, cannot stop sexual harassment at work. We need to change our cultural beliefs from prioritizing customer needs to respecting the dignity of service workers.

Why Sexual Harassment Rates Are So High in the Restaurant Industry

In 2009, Michael Lynn, a professor of food and beverage management at Cornell University, published a study that found that waitresses in the U.S. with blond hair, smaller waists, and larger breasts received higher tips than women without those traits. His findings circulated among restaurant hiring teams and managers eager to jack up sales in the $799 billion restaurant industry. Perhaps no other industry rivals Hollywood in profits made by men off of women’s beauty, charm, and sex appeal—and the ramifications should be obvious to anyone keeping up with the current news cycle.

Like Hollywood actresses, but considerably worse off financially, waitresses endure rampant sexual harassment with impunity. A whopping 90 percent of women in the U.S. restaurant industry report being subject to unwanted sexual advances at work, and more than half of women say these interactions occur weekly, according to a Restaurant Opportunities Center report from 2014. For the restaurant industry—which employs 10 percent of the overall U.S. workforceand where women outnumber men by two to one—the magnitude of sexual harassment is difficult to fathom.
But we do know a few things. Nearly 40 percent of all sexual harassment claims made to the federal agency that deals with workplace discrimination originate with misconduct in the restaurant industry. Between 2004 and 2014, restaurants in 15 states surrendered $10 million in damages and settlements for sexual harassment cases. Cracker Barrel, Outback Steak House, and Cheesecake Factory were among the familiar chains with cases filed against them.Routine exchanges—taking an order, refilling a wine glass, picking up a fallen napkin or utensil, and dropping off the bill—can quickly devolve into sexual-harassment nightmares. That’s practically by design. Dianne Avery, a retired State University of New York at Buffalo law professor who has written extensively about labor and sexual harassment, says that tipped wages put the burden on customers rather than employers to pay a server’s wages. This in turn creates a proprietary relationship between paying customers, who are frequently men, and servers, who are far more likely to be women. “This is the exchange: ‘I’m getting to look at you and talk to you, and I’m paying for it,’” Avery says.

Tipped restaurant workers—a group dominated by servers, but also sometimes including hosts, dishwashers, and bussers—face more unwanted sexual encounters than non-tipped restaurant workers, such as chefs, line cooks, supervisors, and managers, the Restaurant Opportunities Center found. These same employees face higher rates of harassment from co-workers, managers, and, of course, customers. (Alabama senatorial candidate Roy Moore was allegedly one such habitual customer, according to numerous reports from former mall and restaurant workers in Gadsden, Alabama.)  The fact that managers and co-workers harass tipped workers reflects the gendered division of labor in restaurants. Men dominate non-tipped kitchen and managerial positions; women wait tables.
“In an industry where the majority of the workers who receive tips are female, you create a power dynamic [between men and women] and room for sexual harassment,” says Catherine Barnett, director of the Restaurant Opportunities Center of New York. “Questionable behavior and interactions are condoned.”As in the film industry, sexual harassment in restaurants takes on its own industry-specific rituals. The Restaurant Opportunities Center—which boasts 18,000 restaurant workers in 10 cities, including Chicago, Boston, and New Orleans—found that the most common forms of sexual harassment include “sexual teasing,” “deliberate touching, cornering, leaning over, pinching,” and “pressure for dates.” More serious offenses like groping, exposing genitals, and rape are a part of the repertoire as well. Servers at downscale chains and diners such as Olive Garden or Waffle House, where tips are lower and women tend to outnumber men, likely face higher rates of sexual harassment than they do at high-end establishments, Avery says.To make matters worse, waitresses in the 19 states—concentrated around the South and Midwest, where the tipped minimum wage has been frozen at $2.13 an hour since 1991—are twice as likely to experience sexual harassment as their counterparts in the sevenstates, including California and Minnesota, that have banned the tipped minimum wage and replaced it with the standard minimum wage.

The legacy of the tipped minimum wage dates back to the Fair Labor Standards Act of 1966, which secured landmark labor rights including the 40-hour workweek and paid overtime. The same law also legalized a subminimum wage for tipped workers. Today, servers in the states that continue to follow the $2.13 an hour tipped minimum wage earn a living almost entirely dependent on tips after taxes. Waitresses in these states are three times more likely than workers in non-tipped wage states to be asked by management to sexualize their behavior and appearance for guests. Adding injury to insult, these same women are significantly more likely to live below the poverty line.

Sylvia Allegretto, a labor economist who studies the minimum wage at the University of California-Berkeley, says that the tipped wage system has been kept in place for decades thanks to powerful restaurant lobbyists, including the National Restaurant Association—known in the industry as the “other NRA.” One-time Republican presidential candidate Herman Cain previously served as its CEO. “I mean [what restaurant] wouldn’t want customers to pay the bulk of your wage bill?” Allegretto says.“The economic argument that you hear from a lot of restaurants is that if you get rid of the tipped wages, you’re going to destroy the restaurant industry,” she says. “But clearly, that’s not true, because the restaurant industry is booming in many states that eliminated tipped wages.”

In Michigan, women make up nearly 80 percent of the tipped workforce, and the tipped minimum wage sits at a paltry $3.38 an hour. Alicia Renee Farris, a labor organizer in Detroit, and a leader in the Restaurant Opportunities Center’s campaign to eliminate the tipped minimum wage in Michigan, says sexual harassment is a growing issue in the state’s “thriving” restaurant industry. To make a living, Farris says, Michigan waitresses have to “subject themselves to different kinds of ‘behavior’ in order to get tips.” Statewide, more than 20 percent of waitresses live in poverty.Despite the plight of women working in the service industry, most labor groups in the restaurant industry (including the Restaurant Opportunities Center) have been reluctant to come out in favor of banning tips entirely, since most servers rely on tips as their primary source of income. Instead, many reformers would prefer to phase out the tipped minimum wage in favor of a living wage. Tipped workers face a poverty rate nearly double that of non-tipped workers, and politicians like Senators Bernie Sanders of Vermont and Patty Murray of Washington have caught on. In April 2017, the senators introduced a bill that would phase out the tipped minimum wage, raising it to a $15 an hour by 2024—though a Republican-majority Congress makes the passage of this bill unlikely.

Saru Jayaraman, a labor activist and founder of the Restaurant Opportunities Center, says that “the culture of sexual assault in the restaurant industry isn’t an accident,” but a direct outcome of “the subminimum wage and the fact that the majority of people living off tips are women.”

“Countless young women are introduced to the world of work through the restaurant industry,” Jayaraman says, “and they go on to be more likely to accept forms of sexual harassment as ‘just part of the job.’”

‘You will be sexually harassed’: just one of the perils of working for tips

How are you doing today, sir? Dining in, or placing a to-go?” asks a cheery waitress. “Eating in,” a man in his late 20s replies. We are in a casual dining restaurant off a highway in eastern Michigan, Friday, mid-afternoon. Above him, televisions blare; behind him, squeaky-looking booths are starting to fill up.

The man places his order – a burger, some sides – and looks back at his phone, slouching on the leather bar chair. A few moments later, the bartender returns with a beer, which he drinks quickly.

After he leaves, from the other end of the empty bar, I squint my eyes as hard as I can to see what he has left behind for her.

It’s a measly one-dollar bill.

Here in Michigan, the sub-minimum tipped wage is $3.38 an hour. It is expected, by law, that the remaining $5.52 needed to reach the state’s minimum wage of $8.90 should be procured through tips provided by customers.

However measly the money is, though, it could be worse. In 18 American states, it’s just $2.13 an hour. The rate hasn’t changed since 1991.

Restaurant-goers across the US are required to not just cover the cost of their food; they are also expected to add on a significant percentage to their final check to subsidize the restaurant’s wage bill. Convention dictates a loose 15-20% should be added if service was satisfactory.

To non-Americans, the practice seems absurd. For starters, why is there a second minimum wage, well below the minimum – isn’t that an oxymoron? Why is the employer not paying for their own employees’ full salaries? And what happens if customers aren’t feeling generous?

But tipping has seeped deep into American culture. And a closer look raises issues that go beyond cultural curiosity: tipped workers are twice as likely to be living in poverty than other workers, and are mostly female.

Dianne Avery, a professor at the University of Buffalo, reflects on what a tipping system reveals of American society.

“In a country where we believe we have done away with master-servant relations, the existence of tipped workers show us this is far from the case. Because what tipped workers represent for the moment of that exchange [with a customer] is an intimate master-servant relation,” says Avery, who taught labor and employment law for decades.

Chasity Pulford, a 33-year-old Michigan server who has worked in restaurants for 18 years, rarely lets a smile slip from her face. “What can I talk to you about today?” she asks me, slightly surreally, as we sit down to talk. She is polite and bubbly, but never over-familiar.

She tells me she enjoys her work, and plans to remain in the industry. As a young mother, she was too busy working and providing for her child to ever think of going to college. Besides, she has seen people work their way through expensive degrees only to return to serving.

Jobs are far from lacking. The restaurant industry is worth $799bn a year and employs 10% of Americans. In 2014, for the first time since the federal government started tracking it, Americans spent more eating out than buying groceries for the home. This trend continues.

“I am a really good server,” Pulford says. “Some people want to be spoken to, others want to be left alone. You have to be able to read your customers.” Being able to do this helps you get tips. (One of her male colleagues, one of the few in the restaurant, tells me he strives to be best friends with his customers by the end of the meal.)

“The work is very hard. It’s difficult,” Pulford adds, still grinning. Pulford has developed carpal tunnel syndrome in her arms and hands, and arthritis in her knees and feet. At 33, she still has three decades of work ahead of her.

The money tipped restaurant workers make can be good, she tells me, but it varies hugely, not just across restaurant locations and types, but within the same establishment. One server working exactly the same number of shifts as another could be making half the amount. You need to pursue the good shifts end of the week, get the busy sections, and be trusted to “close”.

“When I get to a new place, I know I’m at the bottom, and I need to get to the top fast. That takes me about six months,” she says.

Pulford says working six days a week in a place like this – a casual, modestly priced midwest dining establishment with pretty steady business – you can expect to make $300-$400 a week.

Once you get privileges, the right sections and shifts, you can hope for up to $600-$800 a week, although sometimes there’s no avoiding $400. If it’s slow, it’s slow – however hard you smile.

‘We have to jeopardize our integrity on a daily basis to pay rent’

In Texas, Tiffany Kirk, 27, has been a bartender since her early 20s, and in the industry since she was 16. Kirk is paid $2.13 an hour when she bartends. The Texas sub-minimum wage is the same as the federal one.

Because the IRS considers tips a form of income, Kirk says her base wage generally goes in taxes, which means that all of her wages come from tips. On bad weeks, her take-home pay is $200. At home, she has a six-year-old to feed. The inconsistency of the money is the toughest part. It makes it difficult to plan or save.

I spoke to her during Hurricane Harvey. Her shifts were canceled because the weather and its damage, and she was scrambling to figure out how to make her September rent on time.

According to the 2014 ROC study, women working in states with a $2.13 sub-minimum tipped wage were twice as likely to report experiencing sexual harassment than women where the minimum wage is the same for tipped and non-tipped workers.

“We have to jeopardize our integrity on a daily basis to pay rent. That is an extremely psychologically damaging position to get in,” Kirk says.

Sylvia Allegretto, a labor economist at the University of California, Berkeley explains that the tipped sub-minimum wage system “is a way that employers pass the wage bill on to someone else in order to not have to pay their workers”.

“That’s not a tip, that’s a part of the worker’s wage bill,” she says. Because very few establishments provide benefits, the tips collected must also cover the cost of health insurance, and time off like sick days, holidays and family days.

The people doing the smiling – the “emotion work” associated with good waitressing – are largely female. At a national level, two-thirds of the tipped workers are women. In Michigan, three-quarters of them are.

Julie Vogtman of the National Women’s Law Center, says anyone concerned with the gender pay gap should be paying attention to tipped workers’ struggles.

Of the top five jobs expected to add the most positions over the next decade, all are women-dominated industries, but four out of five of them are low wage, she points out. These jobs “put women and their families at a higher risk of poverty”.

‘Some men come in and they act like they want a strip show’

When tipping first came to America in the 19th century from Europe (which has since largely erased it) Americans were not taken by the practice, finding it “dehumanizing, demeaning and de-professionalising”, says Saru Jayaraman, the co-director of the Restaurant Opportunities Centers United.

At the time, it seemed contrary to American democratic ideals.

“They rejected it as the vestiges of a feudal system. They thought you should get good service regardless of how much you are able to tip,” she says.

But railway companies and restaurant owners fought successfully to have the practice allowed. While train workers unionized and abolished the system, servers never did.

Today, Jayaraman and other allies are fighting for the full abolition of the tipped sub-minimum wage under a campaign called “One Fair Wage”. They are not however – yet – calling for the abolition of tipping as a practice.

However much Pulford knows she needs the money, there are times when she doesn’t mind receiving less.

“If you’re good to me, I don’t care how much you tip.”

I ask her to explain what she means. “They can be demeaning, look down on you like you’re a college dropout. Like they don’t think you’re working a real job. Sometimes they don’t treat you like you’re a human being. Sometimes they treat you like a whore.”

“Who’s they?”

“The customers,” she responds, matter-of-factly. And just like that the shocking stories commence.

The time she had a hot steak thrown at her, and had to go and hide so no one would see her tears. That time she quit her job because the owner was coming on to staff, including girls who were underage. And the many times she felt like she was treated like a sex worker.

In 2014, a study that surveyed 688 restaurant workers found that a staggering 80% of women experienced sexual harassment from customers, two-thirds from managers, and half from co-workers. (Male restaurant workers also suffered sexual harassment, but to a lesser degree.)

The atmosphere of sexual harassment was endemic.

No one puts it as succinctly as Alison Baker, 34, who works as a server in a Mexican restaurant in Chicago.

“When you are hired as a waitress, it might as well be a part of the manual. You will be sexually harassed. You are relying on this person for your wage, so you can’t say anything,” she says. “It can be scary. You’re so vulnerable.”

Baker had a barista friend of hers die when she was younger, killed by one of her regulars. Acquiring stalkers is pretty standard, she tells me, but however much she hates it, when she dresses up and wears makeup, the truth is, the tips are better.

“I think the notion of a young attractive female waitress as a sex object has entered as a cultural norm,” says Avery, the law professor. She points out the emergence and popularity of “breastaurants” like Hooters, starting in the 1980s, where attractive waitresses are expected to wear form fitting clothes and flirt to get tips. But she goes back even further.

In 19th-century America, women who worked in food establishments were often assumed to be prostitutes. “Women only really entered the workforce during the second world war. Before that women’s place was considered to be in the home. So the thought was, well, if they are leaving the home, then what are they doing it for?

“It goes with the territory. Some men come in and they act like they want a strip show. Sometimes I think maybe I should work in a strip club. I feel like at least I might make more money”, says Baker..

My bartender is back, wiping down my section. She wears her blonde hair high above her head, a couple of flower clips to the front. Her black T-shirt tucked into dark blue jeans. Sometimes she calls me hun, sometimes sweetheart. I note all the men get called sir. I don’t really mind. I feel taken care of.

“How you doing there, sweetheart? You need anything else?”

The construction along the highway has been hurting business, I am told. But, being so close to the border, she’s had quite a few Canadians in the past few weeks, which has helped lift the spirits.

“Do they understand about tipping?” I ask.

“Not as much,” she says. “I think they pay servers full wages up there in Canada, so they don’t need to tip as much. Some of them know, others don’t.

“They’re real nice, though.”

Dependence on tips leaves women workers vulnerable to sexual harassment

Recently tipping in the restaurant industry has been the subject of two national opinion polls, both of which suggest the public is divided on the ingrained social practice that is tipping.

In early May, the CBC conducted an online poll asking, “Is it time to end tipping?” Only about 12 percent said No, while over 40 percent said Yes, and 46 percent said Maybe, but only if people were to be paid more.

Shortly after, in mid July, the Angus Reid Institute released the results of an online survey that found 40 percent in favour of a service-included model that would accompany higher wages for restaurant employees, while 46 percent were in favour of keeping the current model of tipping, and the remaining participants had no preference. Although the Angus Reid Survey indicates Canadians don’t appear poised to overwhelmingly embrace a move to a no-tipping model, a majority of survey participants “…see tipping as a mechanism for employers to underpay wait staff as well as others in the hospitality industry.”

These polls accompany a growing no-tipping movement in Canada. A handful of restaurateurs are experimenting with alternative models, such as including a standard service or hospitality charge on bills that gets shared will all restaurant staff, or introducing a no-tipping policy while raising menu prices to pay staff higher hourly wages. Proponents of these new models of compensation argue they will address the wage discrepancy between servers and kitchen staff, and provide more income stability than the current voluntary method of tipping.

Some European countries have already made such models the law. In France, for example, tipping is no longer done, and a gratuity for staff is now legally required to be embedded in restaurant prices, a move that increases transparency for both workers and customers, and stymies tax avoidance.

Tipping involves customers in a responsibility usually reserved for employers: paying workers for their labour. Employment standards laws in some jurisdictions in Canada even recognize customer involvement in remunerating workers by allowing restaurant employers to pay some workers less when they earn tips.

In BC the minimum wage for “liquor servers” is $9.20 per hour, $1.25 less than the $10.45 per hour general minimum wage. Established in 2011, the liquor server minimum wage reflects strong pressure from employer groups who called for the lower wage rate during a stakeholder engagement process. The government did not—and has still not—researched the impact of the lower liquor server minimum wage on either employees or employers in the restaurant industry (something our Freedom of Information requests have revealed). At the very least the government could have also introduced regulation of tips and tip pooling—a common practice of tip redistribution—as Ontario has now done with the Protecting Employees Tips Act.

The introduction of a lower minimum wage for liquor servers represents, in effect, an unprecedented wage subsidy to restaurant and bar owners. Moreover, with Statistics Canada data showing that 81 percent of food and beverage severs in BC are women, the lower liquor server minimum wage has gendered implications. This story, however, is missing from conversations being had about tipping and its alternatives.

Recent research conducted in BC by Kaitlyn Matulewicz has found that the dependence workers have on customers for tips leaves workers vulnerable to enduring sexual harassment and sexualized behaviour from customers as a “price” to be paid for a tip – a form of institutionalized quid pro quo. If workers do resist by, for example, speaking up against customers who are harassing them, they risk losing a tip.

Overtime, sexualized behaviour from customers becomes normalized (something workers simply put up with to earn a living). Some employers also use the promise of earning higher tips to entice workers to accept their discriminatory gender-based dress codes that require workers to wear make-up, high-heeled shoes, low cut tops and high cut skirts.

In short, the liquor server minimum wage legitimizes the involvement of customers in paying workers, and in doing so, reinforces the sexual harassment experienced by women who work as servers, bartenders, and hostesses, and contributes to the sexualization of food and drink serving overall.

The research suggests that the reliance workers have on customers for tips is heightened under the precarious working conditions faced by workers in the restaurant industry, a situation worsened by inadequate employment standards legislation in BC. In an environment in which there are no paid sick days, extremely variable work schedules that include open-ended or on-call shifts (if you’re not called in you’re not paid), and no regulations protecting employer collection and distribution of tips, the asymmetrical power relations between employers and workers—and between customers and workers—are intensified.

The BC government needs to take action to address this inequity and violation of human rights in the restaurants and bars of the province. It needs to eliminate the liquor server minimum wage and regulate the ownership of tips received by all service workers. Laws that allow employers to pay workers lower minimum wages when they are tipped by customers increase workers’ reliance on customers (who are a third party to the employer-employee relationship) for tips. The impact is not gender neutral and contributes to the normalization of sexual harassment and the sexualization of food and drink serving.