Tipped workers are often pressured into doing whatever it takes to give exceptional service. This pressure often comes from the boss or supervisor, who stresses the importance of smiling and being friendly.
However, new research shows that tipped employees may be taken advantage of by customers at a higher rate than other types of workers. Because tipped workers are encouraged to smile more and may even be encouraged to flirt with customers, it creates a situation ripe for sexual harassment.
Understanding what to do if someone has experienced a situation such as this can be confusing. Is it just part of the job? Should the worker report this behavior to management?
The study conducted by Pennsylvania State University came to a startling conclusion about power balance in a relationship between a customer and a tipped worker. Because customers hold the power over how much to tip the worker, they are more likely to engage in behavior that they might now otherwise do. This behavior often includes lewd comments and sexual advances.
The study ultimately concluded that if employees were less dependent on customer’s tips, sexual harassment would be less likely to occur. In other words, the power balance would be more equitable because the customer would not hold as much power over the tipped worker. The study suggests one of the best ways to fix this imbalance is to move to a fair wage model for workers in the service industry. Tip-free restaurants are around but extremely rare, as the model has not caught on, mostly because restaurants would have to raise prices so much that customers would stay away.
But it is not just customers who hold this power imbalance. Tipped workers often suffer sexual harassment at the hands of their bosses and managers, the very people who tell the workers to smile and be nice to the customers. The overwhelming majority of tipped employees are also female.
Federal law does not require employers to pay tipped workers, such as those working in restaurants and bars, the same minimum wage as other types of workers. Because these workers receive tips, that can make up the difference between the hourly base wage they receive and the minimum wage. This leaves tipped workers at the mercy of their customers.
Pennsylvania does not have a minimum wage higher than what the federal government requires: $7.25 per hour. Pennsylvania law does require that employers pay tipped workers a base minimum wage of $2.83 per hour and, if an employee does not earn enough in tips to get them to the federal minimum wage, the employer has to make up the difference. This also puts pressure on managers to stress the importance of tips to their workers and may result in overt sexual harassment.
Many tipped workers, especially during a global pandemic, have trouble speaking out about customer or manager sexual harassment. They need the job, they need the income, and speaking out might lead to losing their job. Tipped workers also fear saying something about an existing customer because then the customer might not leave a tip at all, if confronted by management. This puts tipped employees in a tough spot, even though they have rights.
Sexual harassment comes in many forms and is illegal. Sexual harassment also explicitly forbids sexual harassment from managers and colleagues but also from customers, such as diners in a restaurant. Sexual harassment is any unwanted conduct that may or may not include inappropriate touching.
There are two main types of sexual harassment for the purposes of discussing tipped workers:
- Quid pro quo: This occurs when an employer makes job decisions based on an employee’s sexual conduct. If a restaurant manager tells an employee they will not get staffed during prime hours unless the employee sleeps with the manager, that is quid pro quo sexual harassment.
- Hostile work environment: This occurs when an employee is forced to work in an abusive workplace. To rise to the level of a hostile work environment, the manager has to do more than just yell at the employee. The manager’s actions must be so egregious that the average employee would feel abused.
Some common examples of sexual harassment for tipped workers include the following:
- Unwanted touching
- Unwelcome sexual advances
- Sexually explicit language
- Showing sexually explicit videos
- Conditioning employment on sexual acts
- Giving lewd gifts
- Sending sexual texts
- Reducing pay for not engaging in sexual activity
- Demotion or removal from promotion consideration for not engaging in sexual activity
A few of these examples are specific to workplace behaviors from colleagues and managers. But some may be from customers as well. And it is important to note that the type of industry in which a tipped worker is employed does not negate sexual harassment. Illegal sexual harassment can occur at any workplace, from an adult establishment to a restaurant. Tipped workers should not be subjected to any type of illegal workplace activity, including sexual harassment.
What to Do
Knowing what to do when placed in a difficult situation presents challenges. Tipped workers need to keep working, but they should also experience human decency, from both managers and customers.
Sexual harassment can also happen anywhere. It does not have to occur in the restaurant or business location for it to be an illegal activity. Unwanted sexual behavior can happen in a parking lot, over a text message, at a company retreat, and even in a social setting. It is important that victims of sexual harassment do not discount what has happened to them and stand up for themselves to take action.
According to the study, many customers did not realize their behavior was crossing a line. They did not think about how the worker relied on the tip they were about to give to survive. But not knowing that a line has been crossed does not make a difference. If the customer has acted in a way that rose to the level of sexual harassment of a tipped worker, intent does not matter.
Because sexual harassment is often about control, taking control back is often the best way to make it stop. To do that, a victim of workplace sexual harassment, whether from a boss or customer, should make sure to keep detailed notes about their experience.
Here are some other steps a victim should take:
- Tell the person to stop. This is not easy, and it may have detrimental effects on the tipped worker’s job, but retaliation is also illegal; therefore, if that happens, the person has legal options.
- Frequently, however, telling the offender to stop will not work. This is when it is time to bring in management. If management is the offender, a tipped worker will have to go higher up the chain of command to try to get resolution.
- If attempting to get resolution internally does not work, it may be time to file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Pennsylvania Human Relations Commission (PHRC).
To be clear, if a tipped worker is being sexually harassed by a manager or colleague and they report the harassment, the workplace cannot retaliate against the victim. That will only make matters worse for the employer because, along with the sexual harassment violations, retaliating against any employee who makes sexual harassment claims is also against the law.
Montgomery County Sexual Harassment Lawyers at Sidney L. Gold & Associates, P.C. Provide Compassionate Representation
If you are facing a hostile work environment fueled by sexual harassment, you may be able to do something about it. Take action by speaking with experienced and compassionate Montgomery County sexual harassment lawyers at Sidney L. Gold & Associates, P.C. We may be able to help you find a suitable resolution to the unfortunate situation you face. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia, Pennsylvania, and Pennsauken, New Jersey, we serve clients in Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, Montgomery County, and Cherry Hill, South Jersey.