By Samrah Mian, CLAS Articling Student

The hospitality industry is often judged for its low hourly wages and poor working conditions. Tips allow employers in the hospitality industry to avoid responsibility for their workers’ low earnings and, instead, place it on workers and customers. This practice pushes down wages for service workers, which, strengthens social inequalities and creates an atmosphere ripe for sexual harassment.

Service Sector Workers are Vulnerable

Hospitality workers are often seen as young, single individuals who don’t depend on their income for their livelihood, but these stereotypes are not true. Many service workers live in poverty and more than half of them belong to households in the bottom 20% of the province’s earners. A majority of service workers in the field are women and over half are above 25 years old. Low wages, unpredictable shiftwork, a lack of benefits, no unionization, poor work environments, and seasonal changes mean that many of these workers don’t have job stability. They are often vulnerable and face higher levels of mistreatment, discrimination, and harassment.

The Trouble with Tips

Service workers usually count on tips to add to their low hourly wage, but gratuities are not a stable source of income. Tips can differ depending on many factors which include seasonal changes, the mood of customers, the physical attractiveness of the worker, and the type of establishment. The income of a worker can change dramatically throughout the year and may depend on reasons far beyond their control.

Wages are regulated through employment standard laws but, historically, tips were seen as voluntary payments given by customers directly to the server. This means that tips do not sit comfortably among the laws that control the relationships between workers and businesses, and customers and businesses. The relationship between workers and customers is separate from the usual operation of the law. This disadvantages some of our province’s more vulnerable workers.

The dependence on tips is one of the reasons why sexual harassment is normal in the service sector. Tips are supposed to be an incentive for a worker to provide better service to the customer, but this means that workers must be obedient and compliant towards the customer. The unequal power relations between the workers and customers, combined with the fact that most people working in the service industry identify as women, creates an atmosphere of sexual objectification which makes workers a target for harassment.

The Responsibility of Employers

Employers are often unwilling to change the situation. A study on sexual harassment in British Columbian restaurants found that they often practice discriminatory hiring policies: “the employers of some of the workers I interviewed were also known to exploit women (and sometimes men) workers’ sexuality by hiring people perceived to be physically attractive to take jobs in the [front of house] where workers interact with customers.” Employers also encourage their female employees to present themselves in an enticing way to clients and to wear suggestive clothing which “involves wearing short skirts and high-heeled shoes, showing cleavage, and wearing make-up to work.” Many workers also feel as though their employers expect them to put up with poor behaviour from customers. In this sense, some employers are profiting off their employees’ appearance and sexuality.

While certain laws do put a responsibility on employers to protect workers from sexual harassment, some employers seem unaware that this includes protection from customers. Courts have held that employers have a duty to provide a harassment-free work environment, and the Workers’ Compensation Act also mandates employers to provide a workplace free of bullying and harassment. WorkSafeBC requires employers to develop bullying and harassment policies, and use prevention measures in environments where workers are at risk of harassment by clients. But, even if an employer introduces a comprehensive policy, the standard for unacceptable behaviour before others should intervene will be unclear unless the employer provides them with training.

Without properly implemented policies around sexual harassment, workers may feel forced to put up with unacceptable behaviour from customers, especially when it impacts their own bottom line.

The Human Rights Code can provide a solution for some employees. For instance, if a bar owner hears complaints about a customer from their female servers and refuses to take action, they may face a complaint of sex discrimination. However, while the law protects complainants from respondents who hope to take revenge on them for filing the complaint, some workers may still hesitate to take legal action against their employer because of a lack of resources, knowledge about their rights, worries about keeping their job, shame, and fear that they will be seen as a troublemaker.

The Culture is Changing

Fortunately, a growing awareness about human rights and employer responsibility may be increasing intolerance towards sexual harassment by customers. This shift can be seen in actions such as the City of Victoria passing a motion to prevent sexualized violence and building a culture of consent in the city’s hospitality industry, and Ontario creating a training program for alcohol servers which includes how to respond to sexual violence in their workplaces. Hopefully, other governments and businesses will follow soon.

In British Columbia, service workers experiencing workplace sexual harassment can now receive free confidential legal advice from the SHARP Workplaces Legal Clinic. If you have experienced harassment from customers and your employer is unresponsive, a lawyer can provide advice on how to address the situation and what legal options are available to you. SHARP Workplaces can also assist in connecting a person with supports, such as counselling and employment services. It is always the worker’s decision whether they choose to take any action.

Photo by Vanna Phon on Unsplash

NOTICE: SHARP Workplaces Legal Advice Clinic ceased providing legal services in March 2024 due to an end of funding, and is NOW CLOSED. 

If you experienced sexual assault and need legal advice  contact Stand Informed legal advice services.