Pregnant server sidelined after switch to tight uniforms
About four months after Pamela began working as a server in a sports bar, one of a small chain in the Ottawa area, she became pregnant.
She worked anywhere between 15 and 25 hours a week. When she was about four months pregnant, amid financial difficulties at the bar, a new manager was assigned.
He announced that the wait staff would have new uniforms: tight-fitting Lycra tops.
All of the wait staff were female and between the ages of 19 and 25 — except one in her 40s who only worked the day shift.
Pamela told her boss she would be uncomfortable having to wear the new top as it would accentuate her pregnancy.
He told her that would not be a problem and he could make an exception. He also instructed her to go and thoroughly clean the bar and she ended up finishing her shift late to finish that task.
Turns out, that was pretty much her last shift.
Over the following weeks she stopped by the bar repeatedly to check the schedule but found she was never on it.
She called the boss repeatedly to inquire about when she would be on the schedule and was told there was no work available.
She found out that after her last shift, two new servers had been hired. When she asked why they had been hired while she was being denied shifts, she was told that management did not have to give her an explanation with respect to who worked and when.
After about five weeks without shifts, Pamela hand-delivered a letter to the boss that reiterated her availability and willingness to work and asked if she had been terminated.
Apparently the boss realized that Pamela’s letter had been written with legal advice and wrote a response that awkwardly attempted a two-step. He claimed that Pamela’s lack of shifts had nothing to do with her pregnancy but everything to do his inability to reach her.
Attempting to cover his tracks, he scheduled her for two breakfast shifts the following week.
These were less lucrative shifts than the ones Pamela was usually scheduled for and when things slowed down in the morning, she was the first to be sent home.
She was never scheduled again and she filed a complaint with the Ontario Human Rights Tribunal based on gender discrimination.
The adjudicator decided it was clear that one of management’s efforts in turning around the financial status of the bar was to try to emphasize the sexual attractiveness of its female wait staff by tightening their uniforms.
There was simply no other plausible explanation for the disappearance of Pamela’s shifts other than the fact that her pregnancy was not fitting their branding efforts.
The bar, and the boss personally, were ordered to pay lost wages to Pamela as well as $17,000 in general damages for injury to her dignity, feelings and self-respect.
There are other variations on this theme of gender discrimination in the hospitality industry.
I recently went to a high-end steak house that appeared to only employ male wait staff. I think I was supposed to intuitively understand that I was at a fancy restaurant because only men were serving, therefore this was a serious place. I won’t be back.
After reading this case I went online to see how Pamela’s old bar was doing. The chain has shrunk to only one location. If you go to the web page, the first picture you see is of a tightly-clad young woman who, almost incidentally, is holding a plate of food. Sometimes one is dismayed by what little progress we seem to have made in battling gender discrimination.
To be fair, blaming only the restaurants and bars for the continued marginalization, sexualization and objectification of our daughters, mothers and sisters is a bit myopic.
Every time we, consciously or unconsciously, choose to spend our entertainment dollars even in part based on the sexualization of the environment, we contribute to the problem.
Let’s be real. The “we” I am referring to is disingenuous. It is “we men” who are the preponderance of the problem.
Ed Canning practises labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.