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

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. Legal Frameworks. Human Rights Legislation

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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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