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The Customer is Always Right – or is he? Legal regulation of sexual harassment in bars and restaurants in Canada

This study explores the legal regulations of sexual harassment in bars and restaurants in Canada, specifically focusing on the Occupational Health & Safety Legislation in Ontario. It examines worker autonomy, responses to difficult customers, and the impact of legislation on workplace safety.

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The Customer is Always Right – or is he? Legal regulation of sexual harassment in bars and restaurants in Canada

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  1. The Customer is Always Right – or is he? Legal regulation of sexual harassment in bars and restaurants in Canada Anette Sikka, Doctoral Candidate, University of Ottawa Faculty of Law Supervisor: Professor Katherine Lippel

  2. Legal Frameworks • Human Rights Legislation • Prohibits sexual harassment in the workplace – all jurisdictions • Individual complaint to relevant Human Rights Commission • Remedies e.g.: reinstatement, monetary compensation, letters of recommendation ... • Workers’ Compensation Legislation • Employer funded “insurance” program • Individual complaint to Compensation board based on injury due to SH • Varies by jurisdiction whether compensation available for injuries due to SH and under what circumstances • Remedies: monetary compensation for time off work, rehabilitation, medical expenses, ...

  3. Occupational Health and Safety Legislation • Requires employers to institute measures to prevent hazards at work and penalties for non-compliance; Right for employees to refuse hazardous work • Different jurisdictions = different responses/remedies for different hazards • Actions by employee: immediate refusal to work, complaints to inspectors • Remedies for complaints: removal of hazard, reinstatement

  4. Ontario Occupational H&S Leg • Only some jurisdictions contain protections against psychosocial hazards, some of those include SH – e.g. Saskatchewan • Ontario: • Workplace violence: preventative measures and right to refuse work where worker believes workplace violence will endanger herself (physical) • Harassment: Employer policy, measures for investigating complaints. No right to refuse work.

  5. Study – perceptions and responses to SH • Overall goal: to determine most appropriate legislative response to customer SH • Lit Review: medical literature, sociological literature, hospitality literature, legal • Interviews: to determine the ways in which female waitresses and bartenders perceive sexual harassment in relation to customers and the effect on their working conditions • 12 semi structured interviews • Participants: female, 20-40s, varying levels of service (all over 2 years in the industry), pubs/lounges

  6. What constitutes SH? (perception) • Touching • Comments about specific sexual acts • Verbal: “Safety”: • “When I felt threatened” • “So I think that, there’s a line, there’s flirtatious, which is harmless, I mean, in most situations everyone’s safe, you’re making a decision to talk to people in a certain way. But then when it goes beyond that, that’s somebody else’s choice to behave that way” • “I was never grabbed by customers and I ... didn’t feel threatened”

  7. “Difficult” customers (perception) • Categories of “difficult” behaviour: • Derogatory, demanding, abusive • Gendered derogatory statements • Sexually explicit statements • Significant overlap in categorization

  8. Autonomy/discretion (perceptions) • “client” relationship: • “I loved it when people walked in and said “oh you know I had an awful day” and then an hour later they were smiling and laughing ... I loved it, so when I had to do all that work just to do the job that I wanted to do at the time, yeah it was just a bit onerous” • Tipping – added to creation of client relationship: “taking care of” clients • No clear relationship between sexuality and tipping

  9. Autonomy/discretion (responses) • Initial response non-confrontational : • “couldn’t be bothered” • Joke, remove oneself, ignore, • “Put them in their place”: • Rare for confrontational intervention– for any type of difficult behaviour • Combined with overservice of alcohol • Response based on age, venue, management, familiarity with customer and management trust in their discretion (limitation – all participants over two years in industry, none for whom primary career) • Karasek job demands-control model?

  10. Conclusion • Ontario has mostly deferred to human rights legislation as appropriate forum • Current OHSL would allow for right to refuse if touched (physical) – legislation potentially not reflecting experiences of servers • Right to refuse more appropriate: • Perception by harassed people of customer SH as workplace hazard (not discrimination) • Autonomy increased with employee discretion to refuse • Immediate removal from hazard • Not significant impact on customer (not employment-related consequences) • No evidence supporting “floodgates” argument

  11. This project was supported by the award of a Scholarship for the Integration of Sex and Gender in Environmental and Occupational Health, provided by the Canadian Institutes of Health Research Team in Gender, Environment and Health

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