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Law’s Gendered Subtext: The Gender Order of Restaurant Work and Making Sexual Harassment Normal

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Abstract

Analysing sexual harassment law in British Columbia, this paper argues that in highly sexualised work environments, in which practices including sexual ‘jokes’ or innuendo may be common, law embodies and (re)creates the gendered subtext of the workplace. When a complaint of sexual harassment from a sexualised workplace is raised in a legal forum, a complainant has an obligation to clearly object to the sexual remarks, ‘jokes,’ banter, etc.—which may be the ‘norm’—to show the conduct in question was unwelcome. At the same time, however, a workplace may be structured, in part by law, in a way that restricts employee resistance to uncomfortable sexual experiences. This is the case, I argue, for women working in full-service restaurants when it comes to sexual interactions with customers. This paper explores how restaurant work, in the Canadian context with a focus on the province of British Columbia, is organised in a manner that makes women vulnerable to enduring sexually harassing practices as a routine part of their jobs.

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Notes

  1. Bell v The Flaming Steer Steak House Tavern Inc. (Ont. 1980), 1 CHRR D/155 (Shime), at 1389 and 1390.

  2. I am using the notion of a “gender subtext” as Dorothy E. Smith has to bring attention to the “gender organization of the apparently neutral and impersonal rationality of the ruling apparatus” or “relations of ruling.” (1987, pp. 2–4).

  3. The full-service restaurant industry is distinguishable from the fast-food restaurant industry in that the former typically has customers sit-down, order, and be served their meal before paying for it (rather than order at a fast food counter).

  4. Canadian Human Rights Act, RSC 1985, c H-6.

  5. Sections 91 and 92 of Canada’s Constitution Act of 1867 set out provincial and federal division of powers. For a discussion on labour law and the constitutional division of powers see Glasbeek (2004).

  6. As Dominique Clément comments, “The current framework for human rights law in Canada was pioneered in Ontario, and most studies reflect this origin.” (2014, p. 15).

  7. The Commission was first abolished in 1984, brought back in 1997, and abolished again in 2002. For a history of the Commission see Clément (2010, pp. 308–310), and Brodsky and Day (2014, pp. 12–15). The territory of Nunavut also does not have a human rights commission.

  8. The Lieutenant Governor in Council appoints members of the tribunal for a five-year renewable term. Members mediate and adjudicate complaints, and one member, appointed as Chair, also manages the tribunal and organises the work among members.

  9. Human Rights Code, RSBC 1996, c 210.

  10. These jurisdictions are Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nunavut, Nova Scotia, Ontario, Quebec, and Yukon.

  11. Alberta, Saskatchewan, and Prince Edward Island are the other jurisdictions that neither expressly prohibit sexual harassment or harassment based on sex.

  12. [1989] 1 SCR 1252. The cook had made sexual advances and touched various parts of the complainant’s bodies, including their breasts.

  13. Ibid at 1284.

  14. Ibid at 1284.

  15. Ibid at 1283.

  16. Mahmoodi v University of British Columbia, [1999] BCHRTD no 52, at paras 134–154.

  17. For instance, the following cases cited Mahmoodi for outlining the objective test for determining whether conduct being complained about is unwelcome: Balikama v Khaira Enterprises Ltd. [2014] BCHRTD no 107; MacDonald v Najafi [2013] BCHRTD no 13; Hart v Howlett [2009] BCHRTD no 46; Q v Walker [2012] BCHRTD no 135; McIntosh v metro aluminum products Ltd. [2011] BCHRTD no 34; Chan v Pryer [2008] No. 441; Andrews v Chili House Thai Bistro [2007] no 88.

  18. She also complained that Dutton had kissed and fondled her, however, the adjudicator determined that due to lack of evidence and Mahmoodi’s “compromised credibility” the sexual touching could not have been found to have happened (Mahmoodi at para 231).

  19. Ibid at para 140.

  20. Ibid at para 237.

  21. Ibid at para 241.

  22. As the decision reads, “It is, however, the sexual innuendo and intimate nature of the conversation on the audio tape that most firmly supports the conclusion that the environment was sexualised.” Ibid at para 225.

  23. In exploring how law defines sexual harassment, this article is concerned with how law treats behaviour that has been described as more subtle (such as, sexual/sexist ‘jokes,’ ‘banter,’ ‘horseplay.’) Adjudicators in BC have held, “express objection need not be shown to establish that the behaviour is unwelcome where a reasonable person knew or ought to have known that it is unwelcome.” See McNulty v G.N.F holdings Ltd. (c.o.b “A Flowers Touch”) [1992] BCCHRD no 3 at para 38. In McNulty, for example, a case involving verbal and physical sexually harassing behaviour, including the respondent grabbing the complainants breasts from behind and saying, “your tits would have looked better in the dress,” the respondent’s behaviour “was of such an obviously degrading nature that he ought to have known they were not welcome” (at para 38). In addition, the legal approach to sexual harassment is different in other jurisdictions in Canada. For example, in Ontario, adjudicators have incorporated both the perspective of the respondent and applicant. “The standard of what the perception of a ‘reasonable person’ would be, should consider the perspective of both a reasonable person in the applicant’s position, and a reasonable person in the individual respondent’s position” De los Santos Sands v Moneta Marketing Solutions Inc. [2016] OHRTD no 262 at para 34.

  24. Kafer v Sleep Country and another 2013 BCHRT 289.

  25. Ibid at para 3.

  26. Ibid at para 8.

  27. Ibid at para 28.

  28. Ibid at para 39.

  29. Ibid at para 40.

  30. I interviewed twenty current and former restaurant workers, eighteen of whom are women. Although this article focuses on the experiences informants had with unwanted sexual attention from customers, women also spoke about unwanted interactions with managers and coworkers. I recruited participants in British Columbia by advertising the research using postsecondary school listservs and placing posters in coffee shops and around campuses of postsecondary schools. Interviews lasted between half an hour and two hours, and were recorded and transcribed. Participants I interviewed worked in a variety of workplaces, including: small family-owned diners; chain restaurants (corporate stores and franchises); restaurants serving breakfast, lunch, dinner, or all three; restaurants in hotels; unionized and nonunionized restaurants (the latter was more likely); restaurants with a large bar crowd at night; and, renowned fine-dining establishments. I interviewed people with a few months of experience, and people who were or are veterans of the industry.

  31. The demographic characteristics of restaurant workers presented in this section are close to the national averages. Across Canada 41 % of full-service restaurant workers are between the ages of 15 and 24; 67 % of cooks and chefs are men; with 58 % of management and 75 % of senior management positions; and, 80 % of hosts/hostesses, bartenders, and food and beverage servers are women (Statistics Canada 2006b).

  32. The data, however, are limited in describing the number of young workers in the restaurant industry because it only accounts for workers fifteen years of age or older. And in BC, the legal minimum work age is twelve with the written consent of a parent, or under twelve with the added permission of the Director of Employment Standards. Some of my informants began working in restaurants at the age of fourteen, and also noted working alongside 12-year-old girls.

  33. Alberta and Ontario also have subminimum wages for workers who serve alcohol, and Québec has a lower wage for tipped workers. In these provinces, the hourly general minimum wage versus subminimum wage, respectively, are as follows: Alberta $10.20 versus $9.20, effective September 1, 2014, Employment Standards Regulation , Atla Reg 14/1997, s 9 (a), s 9 (a.1); Ontario $11.00 versus $9.55, effective June 1, 2014, Exemptions, Special Rules and Establishment of Minimum Wage , O 285/01, s 5 (1); Québec $10.35 versus $8.90, effective May 1, 2014, Regulation Respecting Labour Standards, CQLR c N-1.1, r 3, s 3, s 4.

  34. Tip pooling redistributes a portion of tips to other workers, such as cooks, dishwashers, hostesses, bussers, and (controversially) sometimes shift supervisors or managers. Although the law in BC allows employers to pay alcohol servers below the regular minimum wage, tip pools, including the amount of tip money an employer can collect, are largely unregulated.

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Acknowledgments

I would like to sincerely thank my research participants for sharing a part of their lives. This research would not be possible without them. Thank you to the anonymous reviewers and the editorial board for their considerate feedback on earlier drafts of this paper. I am also so grateful to Judy Fudge, Hester Lessard, and Dorothy Smith for the support they provide me with in my doctoral studies, including reading earlier iterations of this work. This research was supported by the Social Sciences and Humanities Research Council of Canada and the Interuniversity Research Centre on Work and Globalization (CRIMT).

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  1. Faculty of Law, University of Victoria, Victoria, BC, Canada

    Kaitlyn Matulewicz

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Matulewicz, K. Law’s Gendered Subtext: The Gender Order of Restaurant Work and Making Sexual Harassment Normal. Fem Leg Stud 24, 127–145 (2016). https://doi.org/10.1007/s10691-016-9322-z

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