Sexism off the Menu: Seven Ways to Protect Servers from Abuse

They serve you with a smile. In private, they pour out frustration. A number of women restaurant workers have told about feeling forced to put up with mental and physical misery, wage theft, unpaid overtime and random hours for fear of being fired in an industry where enforcement of workplace standards has slid due to cuts.

Their dependence on tips makes it harder to stand up to sexist, even abusive customers and bosses, said the servers who shared stories with The Tyee for a series ending today.

Worsening that dependence, research has found, is a 2011 law that set B.C.’s minimum wage 25 cents lower for tip-earning servers of alcohol — a gap that has since widened to $1.25.

Six years on, with complaints mounting and a related B.C. Human Rights complaint slated for hearing, what can be done to stop unwanted sexualization and other injustices on the job for waitstaff?

The B.C. government plans no changes, its minister of labour told The Tyee.

The NDP, if elected, would review regulations, stiffen enforcement, and likely do away with the lower minimum wage for tip-earning liquor servers, an opposition critic said.

British Columbians wanting further action might look to Ontario where bartenders have been empowered to keep their workplaces safer, new laws crack down on tip-pilfering employers, and the government is refitting its employment standards to better protect part-time, precarious workers.

Here are seven possible approaches to making servers safer on the job in B.C.

1. Make it a human rights case.

Brittany Cooper had been working at The Buck & Ear Bar & Grill for over three years when the new owners took over. Things started to change almost immediately. Suddenly, there was a new, form-fitting uniform. And a lot of new, young, female hires.

Cooper objected to the new uniform. The bar manager, she says, responded to her complaint with a demeaning remark. His comment, she says, was representative of a pattern of crude remarks about women that she had begun to hear in her workplace. Once, after a young woman had come in to drop off a resume, the bar manager commented on her “nice big round boobies.”

These details are merely the beginning of a lengthy complaint that Brittany Cooper filed with the B.C. Human Rights Tribunal last year. Cooper is just the latest in a series of women who have made human rights complaints against restaurant employers in British Columbia over the past few years, from Andrea Mottu’s complaint against the Barfly Night Club in 2004 to Karolina Bil’s complaint against the Shark Club in Richmond in 2010.

Robyn Durling, communications director with the BC Human Rights Clinic, says he believes such complaints have made restaurants more sensitive to the issue of sexualized dress codes.

“I think they they’re aware now that there’s a potential breach of the human rights code if they enforce dress codes in a certain way,” he said.

But he noted that the issue is still ongoing. Brittany Cooper is proof of that.

“I think women are sexualized in these workplaces,” he said.

Though some servers choose to wear high heels and short skirts because it results in better tips, Durling said, choice is key.

“I think the big issue here is whether or not women have the option of being sexualized or not. That is at the core of the issue,” he said.

The Ontario Human Rights Commission agrees with this assessment. The commission released a policy position paper last year that recommended the elimination of policies that require servers to wear high heels or short skirts, as they may violate that province’s human rights code. The paper caused casual-dining chain Earls to amend its dress code to allow female servers to wear pants.

2. Ditch the lower minimum wage for liquor servers.

MLA Shane Simpson, the BC NDP opposition spokesperson for Economic Development, Jobs, Labour and Skills, said that his party would increase the minimum wage to $15 if they win the upcoming provincial election. As for the liquor server minimum wage, Simpson said he sees no justification for it.

“I don’t think the case has been made in the industry as to why this makes sense, other than essentially offloading some of the responsibility for wage rates onto gratuities,” he said.

An NDP provincial government, Simpson said, would look into the liquor server wage and explore the possibility of a regulatory regime for tips and gratuities.

B.C.’s Minister of Labour Shirley Bond defended the two-tiered minimum wage, confirming liquor servers will continue to receive $1.25 less than the norm when it rises to $11.25 an hour in September of this year. Bond said the laws on the books now are adequate protections for restaurant staff.

3. Beef up enforcement protecting servers.

In response to The Tyee’s query, Labour Minister Bond did not address whether enforcement is adequate and should be increased after being cut by her government.

Opposition critic Simpson is convinced “there does need to be — not a huge amount of investment — but some modest investment to put investigators back in place and to allow a more proactive approach by employment standards to ensure the protection of workers.”

Last fall the Ontario government announced $1.7 million in funding for a new program to train bartenders and servers to “identify and intervene in instances of sexual violence and harassment among employees and patrons.” Stronger legislation around sexual violence and harassment aimed at creating safer workplaces came into effect at the same time.

4. Legally force employers to be transparent and fair about tips.

The Ontario government last year implemented the Protecting Employees’ Tips Act which makes it illegal for employers to withhold tips for breakage or damage. It also established rules around the pooling of tips, a practice that servers interviewed for this series have said is rife with the potential for abuse.

Labour Minister Bond told The Tyee her government has no “no plans at this time to establish tips legislation, although under s.21(3) of the Employment Standards Act, there is a provision that an employer may not use tips to cover a business cost.”

5. Strengthen employment standards to reflect today’s workplaces.

Recognizing that the increase in precarious and part-time work has rendered many of its employment standards inadequate, the Ontario government is currently conducting a review called “The Changing Nature of the Workplace.” After public consultations in 12 cities across the province, the government released an interim report in July 2016 that included options for amending the province’s Labour Relations and Employment Standards Acts.

Here in B.C., the job of examining employment standards has been left to the B.C. Law Institute. Last year, the independent law reform society took on the job of reviewing B.C.’s Employment Standards Act, which hadn’t had a comprehensive review in 20 years.

BCLI senior staff lawyer Greg Blue said B.C.’s Employment Standards Act is oriented towards a working climate of full time jobs with fixed hours. But that’s not the way the world of work is anymore.

“That type of model is dwindling,” he said. “We’re getting far more part time and precarious employment and there’s also less unionization.”

The BCLI review is examining every part of the Act. Sections that may affect restaurant workers include those that deal with hours of work, overtime, holidays, statutory holidays and annual vacation, said Blue.

“One issue that is a bit of a sore point is there used to be a provision requiring notice of shift change. It was taken out of the Act. So there’s controversy around that. That kind of thing would be of interest to part time and shift workers,” he said.

The Employment Standards Act Reform Project has received funding from all sides of the employment issue — from the government jobs ministry, to the Coalition of BC Businesses, as well as labour groups such as the BCGEU, the HEU and the Vancouver District Labour Council. The project will be entering the consultation stage during the next few months. Although the BCLI intends to publish their recommendations by the end of the year, what happens after that is not yet clear.

“We know that the Ministry is interested because they have an observer at our meetings,” said Blue. “But there isn’t a formal governmental commitment to open up the Employment Standards Act.”

In other words, although some BCLI recommendations have been adopted into legislation in the past, there’s no guarantee that their forthcoming recommendations will lead to changes to the Employment Standards Act.

Labour Minister Bond told The Tyee: “Although government is not planning a review of the Employment Standards Act, I am aware that the BC Law Institute is doing an independent review of the Act. We appreciate the work they are doing, and any further decisions will only be made after a thorough review of their final report.”

The NDP’s Simpson says there’s no doubt change is needed. “Employment Standards was essentially gutted by the BC Liberals,” he told The Tyee, adding, “We’ve created this situation where the interests of workers are not being looked after. We really need to bring some balance back.”

6. Outlaw tipping?

Some advocates say the practice of tipping ought to be eliminated altogether, in large measure because of what many servers told The Tyee — namely, that tippers can hold too much power in an unhealthy workplace setting.

Tipping has been the subject of debate in North America and Europe over the past few years. France has done away with tipping in favour of embedding gratuities in restaurant prices. Restaurants around the United States have experimented with no-tip business models, with mixed results.

In B.C., such experiments have, as yet, been short-lived and unsuccessful. Vancouver’s restaurant Ritual reversed its no-tipping policy after only four months last year. The owner said sales were not strong enough to support the living wage of $21 per hour that she was paying her employees. In August, she gave up on the experiment, cut wages, and brought back tipping.

A similar experiment on Vancouver Island in 2014 was equally unsuccessful.

Canadians are divided on the subject of restaurant tips. In an Angus Reid poll last year, 40 per cent of Canadians surveyed expressed a preference for a no-tipping model in restaurants. Forty-six per cent favoured sticking with the tipping system. Servers interviewed for this series were similarly split. Some said they’d gladly give up tips in exchange for a living wage. Others said they enjoy having the ability to earn more for providing better service. One or two of them noted that restaurant work is one of the only reliable sources of income left for young people.

“If you start this thing where the tipping gets eliminated, you might take away this job that young people have that allows them to make a living and make more than 15 bucks an hour,” said Laura, a former Vancouver server who worked in the industry for a decade and a half.

7. Strengthen unions.

Policy reviews may eventually result in tighter employment standards and better enforcement. In the meantime, though, servers are on their own. Unless they’re among the few protected under collective agreements.

Brittany Cooper, filer of the B.C. Human Rights Tribunal complaint against The Buck & Ear Bar & Grill, is one of those. Because she was in a union — Unite Here Local 40 — she had backup in her confrontation with her managers over the restaurant’s dress code.

Like many other servers interviewed for this series, Cooper said in her human rights complaint that protesting the dress code resulted in her being given fewer hours and less desirable shifts. Her managers, she said, raised “unsubstantiated complaints” about her performance at work. They singled her out for criticism and made demeaning remarks about her appearance.

Three months after the Buck & Ear changed ownership, Cooper was fired. What followed were union grievances, disputes, a re-hiring, a re-firing, and finally the complaint to the B.C. Human Rights Tribunal.

Legal counsel for Unite Here Local 40 is representing Brittany Cooper at the human rights tribunal. Because the case is moving forward, neither the union nor Cooper or her legal representative wish to comment on the matter.

In November, the tribunal agreed to hear her case against her employer. A date has not yet been set for the hearing.

This is last in a series of three. Read the entire series Slaves to Tips here.