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Sexual Harassment in the Service Industry: Your Guide to a Safe Working Summer
It’s summer patio season. As things heat up, many head to the bar to cool off with a cold drink or two. Shorts, sweat, alcohol, can combine to produce flirtatious comments that may cross the line. How do you stay safe as a server this summer?
The two recent cases of N.M v. C.T, and S.E. v. 2474489 Ontario Inc. highlight the shameful secret of the service industry: sexual harassment is prevalent and predatory. Before we review those cases, let’s take a deeper dive into the problem of sexual harassment at work.
How big is the problem?
According to Statistics Canada, “(47%) of workers in the provinces either witnessed or experienced some sort of inappropriate sexualized or discriminatory behaviour in a work-related setting in the previous year.”
Although women were more likely to experience sexual harassment (47% of women), 31% of men also report experiencing sexual harassment at work. Younger workers (aged 25-34) are are more likely to experience harassment as well (60% women, 39% men), as are those working in sales and service occupations (55% women, 45% men.)
Combine those stats together and it becomes clear why workers in restaurants, bars, hotels, and retail are more likely to experience sexual harassment at work.
What makes it worse for service industry workers?
One of the reasons that sexual harassment at work is higher for service workers is because of customers and clients. Stats Canada reports that 53% of women and 42% of men experienced sexual harassment from a client or customer. The Patron/ Server relationship has a fundamental power imbalance, and historically has been rooted in misogyny.
The Ontario Human Rights Commission 2017 report Not on the Menu highlighted many of the issues that contribute to sexual harassment in restaurants and bars. Bars and restaurants may have workplace expectations around dress and appearance which may embolden patrons to make inappropriate comments. Alcohol lowers inhibitions which increases the risk to servers in these environments. Servers rely on tips and may feel pressured to ignore inappropriate behaviour to not jeopardize their income. Employers may also expect and encourage servers to place the customers needs ahead of their own. Service work is often low-waged and unstable, and a necessity for many. Fear of being punished by either the customer or the employer means many workers feel that they must accept sexual harassment as part of the job.
The law says otherwise. Employers have a duty to protect workers from “third party” sexual harassment, meaning keeping workers safe from customers and clients. Unfortunately, employers do not always want to act when workers speak up, and may, in fact, punish the worker.
Two Recent Cases
It wasn’t a customer that crossed the line for either N.M., or for S.E. Both involve sexual assault by the employer. As is customary in cases involving sexual assault, the courts have protected the identity of the people involved.
N.M, began working for the employer at age 18, and, 4 years later, was drugged and sexually assaulted by the owner/operator of the bar, a man she trusted. He was convicted in criminal court, and the civil courts awarded N.M. $137,689 in general, aggravated and punitive damages, as well as loss of employment.
It was a manager who sexually assaulted S.E. The sexual harassment began with sexualized comments, progressed to requests for sexual activities, and then resulted in not one but two instances of sexual assault. S.E. did report the behaviour to the owner, both before the first assault and then after, but the owner dismissed her concerns and said there was nothing he could do about it. Because of this inaction, S.E. was assaulted a second time. The Human Rights Tribunal awarded S.E. $35,000 for injury to feelings, dignity and self respect, as well as a small amount for lost wages.
Yes, we are grateful that both N.M. and S.E. were compensated for what happened to them. Money can’t make the harm go away. Neither of these incidents should ever have happened. Unfortunately, perpetrators can take advantage of the laissez-faire, anything-goes culture that can permeate the bar and restaurant scene to engage in inappropriate behaviour ranging from sexual comments to sexual assault.
How to protect yourself
Like the old cartoon Schoolhouse Rock used to say: Knowledge is Power. Know your rights. No matter where you work, you have the right to a workplace free from sexual harassment, which includes being free from:
- sexual comments, jokes, or messages
- comments about your body, clothing, gender, or sexuality
- unwanted flirting or repeated requests for dates
- sexual touching or assault
- sexual harassment by a customer, client, resident, or other third party
If you are experiencing sexual harassment, first of all, recognize that this is NOT your fault! You are not to blame if you experience sexual harassment. Take care of yourself. Seek support from friends, family and trusted professionals. Know that you have options.
When it comes to proving sexual harassment, your word matters. Any supporting documentation is also important. Write down what happened to you, with dates and times. If you and your harasser exchanged written messages by text, chat or email, keep copies of them. If there are witnesses, note them down. If there are audio or video recordings, keep them, or ask for them to be preserved.
When you are ready, speak up. We recognize that there are many, many reasons that people don’t report. Fear of job loss or negative job-related consequences, fear of being re-victimized, feelings of shame, embarrassment and self-blame, and fear of not being believed are but some of the very valid reasons people do not wish to report. You are not alone, and you can take control. You have options. When you are ready, take action.
Sexual violence is a criminal matter, and some elements of sexual harassment may also rise to the level of criminal harassment. You can call the police. We recognize that the police and the criminal justice system are not always an ideal system for dealing with sexual violence, and supports exist, including victim services, for those walking through the criminal justice system.
You can report through your work. Every workplace in Ontario is required to have a policy and program to deal with Sexual Harassment in the workplace that indicates how to make complaints, and how they are investigated and resolved.
You can also pursue civil claims through the Ministry of Labour, the civil courts, or the Human Rights Tribunal. Each forum has their merits and their drawbacks. Call us to get legal advice on what might be the best way forward for you.
As a server, you are also covered by WSIB. You may be eligible for compensation for medical expenses, as well as loss of income if you are forced to leave work for physical or mental health recovery.
Conclusion
Ontario has approximately 430,000 people employed in the service industry, or roughly 5.5% of the workforce. It’s an important part of our economy and an important source of income for many workers, especially younger workers. While many of us want to enjoy a bevvy on the patio this summer, the sad reality is that combining alcohol, precarious work, and a culture of permissiveness and misogyny is a bitter cocktail for those in the industry.
Need legal advice?
If you are experiencing sexual harassment at work, you do not have to figure it out alone. We are one of several Legal Clinics across Ontario who are part of the SHAPE Your Workplace project, seeking to provide education and support around sexual harassment at work. We can help. Our services are free and confidential. Reach out directly to our legal clinic, or Call 1-833-677-5146 for free legal advice.