Restaurant servers have historically been at high risk of sexual harassment by customers. This is especially difficult for workers to navigate because of their financial reliance on tips. A new report by One Fair Wage, a nonprofit organization that advocates for restaurant employees, finds that the scourge of sexual harassment for servers is becoming uniquely ugly and more frequent during the pandemic.
Sexual harassment in restaurant work
Most Maryland employers have the legal duty under federal or state law to protect employees from sexual harassment. While people usually think of sexual harassment as happening in workplaces not exposed to the public, it is also illegal when the workplace is public-facing and includes nonemployee patrons with which the staff must interact.
In the case of food servers, being subject to verbal abuse of a sexual nature or unwanted touching from customers creates a hostile work environment, a form of unlawful employment discrimination based on gender. The restaurant employer has the legal duty to keep the workplace free from harassing behavior and to respond when an employee reports it.
A restaurant employer could establish a procedure for harassed servers to alert management when a customer is offensive so the employer can respond appropriately. For example, a manager could tell the patron to stop or leave the premises.
One Fair Wage surveyed 1,675 servers in five states plus D.C. Responses showed that 83% reported that tipping has decreased during COVID-19, most by more than half and that sexual harassment of wait staff increased 41%.
Another issue is the risk of contracting the coronavirus in the work environment since people must remove masks to eat and serving brings the wait staff within six feet of customers. Restaurants are known as high-risk locations for transmission.
Servers are often in the unenviable position of having to enforce safety practices such as requesting that customers social distance or wear masks when not eating. Customers may respond in a hostile or threatening manner. About two-thirds of those surveyed said their tips were lower when they enforce COVID restrictions.
Plus, there are fewer customers to leave tips when some establishments are doing take out only or severely restricting the numbers of patrons allowed to dine.
Masks and social distancing have sparked new ways to sexually harass servers. For example, customers may ask servers to remove their masks so they can observe servers’ appearances to decide how much to tip. Many mask-related comments are much more vulgar. If a server complies with a mask-removal request, they increase the risk from COVID.
While servers may feel pressure to tolerate sexual harassment from customers because they need tips, sexually hostile work environments are illegal, and employers must take steps to eliminate them – and prevent them in the first place. Servers should report sexual harassment to management or human resources, if available. Federal and state laws also protect employees who report or seek redress from employer retaliation. Victims have legal remedies through government agencies like the U.S. Equal Employment Opportunity Commission (EEOC) and the Maryland Civil Rights Commission, and through lawsuits.