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Search “sexual harassment and restaurant” on CanLII: Get 775 results!

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I did this search this morning as an experiment.  While not all the cases reported on CanLII[1] dealt with sexual harassment of an employee working a restaurant, many did.  By way of a simplistic comparison, the search term “Sexual Harassment and Dentists” yielded 166 results.

A quick review of the restaurant cases revealed a number of discernible themes:

  • Victims are often young – in their teens or in their twenties;
  • Victims are low paid and economically dependent on the job;
  • If they complain about sexual harassment, they are often subject to reprisal, including other types of abusive behaviour or termination;
  • The harassers are owners of the restaurants, managers, chefs, sous chefs, other colleagues and customers;
  • The harassment often goes on for extended periods of time;
  • The harassment takes many forms including but sadly not limited to, slapping bums, pinching breasts, telling dirty jokes, sending sexually explicit voice mail messages, putting hands underneath a woman’s shirt, calling a woman a “bitch” or a “c**t”, suggesting a woman sleep with a manager, pulling on a woman’s underwear, using “props” including screws, broom handles and tongs in a sexualized fashion;
  • The cases occur across the country in every jurisdiction;
  • There are not only older cases, but many newer ones;
  • Damage awards are still overwhelmingly modest, often in the several thousand dollar range.

In fact, one of the foundational sexual harassment cases comes from a restaurant.  Janzen v Platy Enterprises is a 1989 case of the Supreme Court of Canada that dealt with a number of waitresses who had been on the receiving end of sexualized touching, advances, and verbal abuse.  In this case, the Court made it clear that sexual harassment is a form of sex discrimination.

So, no one should be surprised that a case involving a young pastry chef made the news this week after she filed an application to the Ontario Human Right Tribunal alleging that she was sexually harassed.   This 24 year old woman, who has said that it is her dream to be a chef, has claimed  that she was groped, had her bra undone, was called a c**t, had a picture of a male genitalia drawn on her work station, among other things.

According to reports in the media, her former co-workers have denied the allegations and the company that owns her immediate employer has stated publicly that they have a policy, they are disappointed by the allegations, and there may have been a lack of reporting and communication about the problem when it arose.

From where I sit, something dramatic has occurred in the zeitgeist in the last twelve months regarding sexual harassment. More women are coming forward not in shame, but in defiance, demanding that they not be subjected to this type of demeaning and dehumanizing behaviour, and where their workplace is lacking, holding their employers accountable.  Moreover, it appears that we are now turning our collective minds to sexual harassment (and other forms of workplace abuse) as not only something that occurs as an isolated incident, but in some workplaces and institutions, as part of an overall culture.  This case is emblematic of that shift.

If you are to believe the commentary in the media, as well as one well known Toronto restauranteur who has organized a soon to be held conference called, “Kitchen Bitches: Smashing the Patriarchy One Plate at a Time”, there is indeed a pervasive culture in restaurants and professional kitchens where women are vulnerable to sexual harassment, and employees of both genders are vulnerable to other forms of workplace abuse. I am certainly persuaded. The existence of a problematic culture is consistent with not only the abundance of case law, but with what I have seen over the years working as an employment lawyer.  Indeed, one of the most egregious cases of sexual harassment I have ever handled was early in my career, where I represented ten women who claimed that their boss, a restauranteur and franchisee in a well known chain, used sexualized language, solicited them, and locked them in the restaurant’s freezer so he could grope their breasts and grab their behinds.

So what to do if you are an employee working in a kitchen and are on the receiving end of sexual harassment? Keep notes and records, and tell your friends and co-workers.  Tell the harasser in no uncertain terms to stop.  And be bold. Make a complaint and if you do not get satisfaction, make another complaint up the chain of command.  If that doesn’t work, make an application to the Human Rights Tribunal in your jurisdiction. You do not need a lawyer to do any of these things, but sometimes it helps to have an advocate in your corner.  Whatever you do, do not assume that you will not be believed because there are no witnesses, or that it is a “he said she said” or that you will never work in the industry again if you come forward and tell your story.  In this climate, these things are increasingly untrue.

What are you to do if you are an employer in this industry?  Do not assume that just because you have a policy it is being followed, and do not assume that just because you haven’t received a formal complaint, your organization is free from sexual harassment or other forms of workplace abuse. Take proactive steps to determine what are the actual working experiences of your employees, particularly if you are removed from the day to day operation.  Conduct periodic interviews and roundtables. Do informal check ins with the staff.  Train your staff on what acceptable workplace conduct is and consistently demonstrate that behavior yourself.  Do not wait until you have a formal complaint to investigate.  If you have information from an informal source that something is off, intervene to find out more. Most importantly, hire and retain only employees who can demonstrate appropriate workplace behaviour. Do not keep the rest.

About the Author: Toronto Employment Lawyer Janice Rubin is co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.

[1] For those unfamiliar, CanLII is an online database of legal decisions from courts and tribunals across the country.