An interesting legal query

Factual Questions
1

To protect all innocents, I will kindly leave names out of this post.

I am a host at an upscale restaurant which specializes in steak. I started work at this restaurant back in May of '03 as a busser, a position I disliked, but I managed to struggle through. Slowly, I might add. I am not the fastest paced worker, but I am methodical, and I get my job done. In late August or early September, there developed very quickly numerous vacancies at the host stand, and I eagerly stepped up for the good of the restaurant and the good of my wallet and said I would take on the duties of host. Fast forward to November when the last hostess who would work during the week finally quit… and the restaurant was left with me working 7 days a week for a period of at least 3 weeks. Another fast forward to January, and my managers begin to go on a hostess-hiring binge, hiring 4 hostesses in the space of about a month. So the current situation is: 1 male host (me), 3 regular female hostesses, 1 cross-trained female host/food runner. About two weeks ago, one of my managers, the one who took over when the one who hired me left, began suggesting that I should train as, and begin, food running. I immediately declined the suggestion (No, I’m not interested)… yet he has repeatedly brought up the topic… using the EXACT same line to try to convince me (said line being, “You’ll make more money as a food runner”). Again, he has repeated this comment to me over and over. Then, last night he informed me that I was going to be bussing this Saturday. I proved in the past, rather soundly, that on the days that we are our busiest, I do my worst as a busser. I get frazzled, then frustrated, and then I start to break things. It is virtually inevitable. I wound up going home last night (Feb. 9) incredibly upset and seriously considering walking in today and turning in my two week notice. Fortunately, my roommate is amazing and helped me cool off. So I did not. My manager had also called me on my drive home to inform me that “the ball’s in your court” and “please think about this”. My answer, plain and simple today when he asked, was no. He made a comment about having to make one of the other hostesses do the job, then, and walked off. I later received a call from one of my OTHER managers (there are 3, they are all male)… who proceeded to chew my ear on the phone. Manager the first (the one whom I am having problems with) seemed almost gleeful when he told me I had a call. Manager2 (with whom I get along well, typically) asked, in a somewhat heated tone, whether I thought it was better for business to have a trained busser bussing tables, or a female trained only as a host. My response was “Even if I were back there, M2, it wouldn’t make a difference.” At that, he conceded my point which, when I repeated the conversation to M1, seemed to deflate his sails.

So here’s the question. How close is this to harassment? I don’t want a lawsuit, as it probably will draw bad blood between me ant the two managers with whom I work well. But I do want to be able to talk to them and say “Listen, something has to be done, M1 is making me seriously uncomfortable and I need it to stop.”

By way of an additional bit of information, M1 has also repeatedly told me that it would be more “beneficial” to business to have an all-female hosting staff. Is this sexual discrimination?

Any and all comments relating to this post and providing me with useful information related to this case are very much appreciated. I was informed by Punha that this is the best place for a dilemma such as this.

W/A

2

Sorry to be a grump, but I think M1 has no spine, much to your benefit, and you should be thanking him for his lack of managerial ability. Any reasonable manager would say “you’re bussing saturday, be there.” Granted, a good manager woud say it nicer, and tell you why it’s to your benefit, but utilmately their job is to make sure there are enough hosts and bussers, and that means telling you what to do.

Further, any reasonable manager would warn you after you broke stuff when you bussed, and if it happened on a regular basis relieve you of your job.

However, may I wish you the best of luck in your frivolous lawsuit. The world needs more of that.

3

I agree that a manager should be telling me what to do… however, when I will perform at a far more superior level as a host than I will as a busser, why would you want an employee who will do a mediocre job (at best) on the busiest night of the year?

Secondly, the breakage did not occur frequently, as (during the summer) we very rarely had nights that we got so busy that I became that frazzled.

Third, I have long since informed all my superiors that I have no desire to return to bussing, and yet there has been no effort made to hire any new bussers.

Finally, I have no intention of bringing this suit to court, as I despise frivolous lawsuits. However, I was seeking insight as to whether I had a right to speak with my other managers about M1’s treatment.

My thanks.

4

As I’m sure a dozen people will stop in here to tell you any minute now, your recourse is probably to leave if you’re not happy with your job. It’s up to the manager to decide what job you’re supposed to do, and apparently this one has decided that he needs/wants you to be a busser or runner more then he wants you to be a host. What you want isn’t all that important to him if it goes directly against his desires. Sure, it’s nice to have happy employees (which is why he tried to convince you that being a runner would be a good move), but the bottom line is that he’d really rather have you doing a job besides hosting, and your lack of cooperation isn’t exactly endearing you to him.

This is one of those “pick your battles” situations. I get along great with my boss, but I know that if he keeps making a suggestion that I’ve declined, eventually I’m supposed to wake up to the fact that it is becoming less of suggestion and more of a command. This isn’t harassment, it’s called “having a boss”.

Regarding the hosting positions going to the girls, that’s not sexual discrimination either. The restaurant wants to have the customers greeted by the people they respond best to, and it is probably quite true that the customers, on average, prefer being greeted by a cute girl. Maybe they’ve done statistical analysis on the reported moods of customers and determined that they’re more likely to buy Cadillac Margaritas if they’re greeted by someone wearing a skirt, or maybe they’re just going with their gut feelings, but it’s their prerogative. Of course, you should take this entire last paragraph with a grain of salt, because I have no actual knowledge of sexual harassment law – that’s just my sense of right vs. wrong, which I’ll concede may not be worth much.

And not to be too much of a wet blanket, but you should also probably consider the possibility that you’re not that great a host. They did give you a chance, after all…

Good luck.

5

On reading your second post, I thought I should make one more comment. Of course you’re entitled to bring this up with your other managers, and I think you have a reasonable concern. You just have to approach it in the right way. Not even the managers you get along great with want to deal with an employee who wants to claim they’re being “harassed.” You need to say something like, “it seems like M1 is really against the idea of me being a host, but that is what I want. Are you going to let me do that, or am I always going to be pushed to do a job I don’t really want to do?”

6

I think you’re jumping to an unsupported conclusion. I’m no expert in discrimination law, so I won’t comment, but it seems to me that more learned comments are necessary regarding whether it is sexual discrimination to want only women in a particular position, regardless of whether it’s perceived as being good for business. Discrimination law often doesn’t excuse a “business decision” to discriminate.

7

IANAL etc.

My question is whether you were ever officially “promoted” into the job of “host.” On paper as far as the restaurant is concerned are you a host or are you a busser? If the former, then their moving you to a busser position because they prefer to have an all-female host staff is IMHO sex discrimination. You are obviously qualified for the host job and you are being denied the position because you are not female. If however you were never actually “promoted” then you probably have no leg to stand on. You’re a busser who was temporarily assigned other duties whose performance of those duties is no longer required. Now, if the host position was posted and you were not given the opportunity to apply for it because you are male, then we’re back to sex discrimination.

Check out www.eeoc.gov for more information on sex discrimination and your remedies. You can also check out what protections your state offers under its own anti-discrimination/fair labor laws by contacting your state department of labor or its equivalent.

8

While it did not “officially” involve a promotion… I have been paid as a host since making that transfer, and when I made the transfer there was never talk about it being a temporary move. I took the position at the host stand during a period when my managers could not find ANYONE who wanted to hire on as a host. The fact that I started hosting in late August/early September and they did not hire anyone for the position until November (a person who promptly quit) and then did not hire anyone else until January, save for one person who knew, walking in, that she was only going to be there temporarily, would indicate to me that I am considered a host “on paper”.

9

Wandering Agnostic wrote

See, the thing is those aren’t the only two options. If as you say you did a “mediocre job at best” for the role you were hired into, I’m really sorry to spell this out so bluntly, but you should’ve been fired. The manager’s job isn’t to find a role that best suits you, his job is to give his customers the best service he can.

The direct answer is: You have the right to do anything you like.

But I suspect what you really want is advise on how you can be a host and not a busser. So here’s mine:

a) Do NOT bring up this discrimination thing to anybody, M1, the other managers, or other employees. Under any circumstance. The fact is that you’ll create enemies for no gain. I’m not a lawyer, but I am an employer, and I’ll tell you that 1) I really think you have zero case, and more importantly, 2) employers see words like “discrimination” in capital offensive letters. That’s a word that equates to “not part of the team” and “frivolous lawsuit” (especially in your case as a male with a slim case at best). It’s a word that makes the employer immediately think about how to get rid of you.

b) Do talk to all of the managers, and tell them you want to host and not bus. I know, you’ve done that before. But you need to take a different tack on it. It’s not about “not bussing”. It’s about “better hosting”. Talk in terms of more value for them, not you. Tell them individually: “I really love that you gave me this opportunity to be a host and I want to be a better one. Please give me some feedback of what I can do to really excel as a host.” Even better, have some suggestions of how to make the customers happier in the hosting role, i.e. ways they can get seated quicker or whatever else would make them happier customers. Don’t tell them (or demonstrate) that you suck at bussing; tell them (and demonstrate) that you’re a fantastic host that wants to be even better.

10

It looks like you have two actual legal questions, which I’ll comment on rather than tell you how to run your life:

  1. is this harassment?
  2. Is hiring an all-female hostess staff sexual discrimination?

Well, both answers vary widely state by state, and depends wholly on state law (at least in your case, i.e. diveristy requirement, etc.). So, really, we need more information. But, for a short answer (I’ll assume CA law), I’ll attempt at briefly seeing where you might stand on the issues (based on my one workplace harassment case):

  1. most people think sexual harassment, but CA allows for other types of harassment. Harassment can come from one singular incident or a pattern of behavior. You should be looking to such factors as: a) if conduct is unwelcome or not; b) conduct is physically or verbally abusive and is based on protected classifications found in the Fair Housing and Employment fact (brain freeze! - such factors as race, creed, religion, etc.); and c) the conduct is sufficiently (not defined) severe or pervasive enough to cause a change in employee’s working environment and cause an abusive working environment (“AWE”).

AWE is not defined (at least not black letter, i.e. commonly held in all jurisdictions, obvious, etc.), but uses the standard of what a reasonable person in the same position as the harassed employee would consider abusive. To evaluate AWE, such factors are considered: severity, frequency, if it effects employee’s work performance, and if it effects employee’s psychological well-being.

From your fact pattern I see nothing that calls out The Fair Housing and Employment act. Also, given the responses already by the other posters in this thread, they seem to think that your working environment isn’t all that abusive. Again, this all depends on what state you’re in; CA is just an example.

  1. A claim for sexual discrimination is tricky. You’re basically looking at if you have suffered Disparate Treatment (being treated differently) and the requirements under Title VII (I believe). Since this isn’t my practice area, I’ll be really brief. I do know for a fact that just b/c an employer hires only one gender for a specific position in the company doesn’t automatically mean that it’s sexual discrimination. The court can look to similarily held positions in other companies and see if the disparate treatment is worthy of a Title VII action. In your case, it doesn’t sound like it.
11 
  Aren't you rather jumping to a lot of conclusions regarding a situation with which you are not personally acquainted? Another one of the manager's jobs is to make sure that the restaurant continues to operate with a minimum of fuss. Often, it may be the better choice to stick with a mediocre worker than to go through the trouble of sacking and being short-handed. Anyway, it seems that the OP served the restaurant to some extent by being useful in multiple roles, especially when the establishment was short-handed.

 Anyway, I do agree in one sense. It doesn't seem to me from the descriptions provided that there is a likelihood that anything done by the managers constitutes "harassment." After all, it is a manager's prerogative to express himself regarding what tasks he believes an employee should be undertaking. That he does it repeatedly doesn't seem to me to be harassment.

 And some people think we don't need unions these days.

 Bottom line, anyway, is that you don't have any kind of legal claim on the hosting position.

 Now, if you really think there is a possibility of discrimination here, then I wouldn't dismiss it off-hand. If the guy really did say "I only want women as hosts," then I'd be all for a serious lawsuit, but you'd better get another job first and then call the A.C.L.U.

 I don't understand what this means. It seems to me that if gender discrimination is illegal, then it's illegal. Industry standards that basically amount to sex discrimination are not an exception under the law. And it seems to me very unlikely that the law is going to recognize any reasonable industry standard for all women as restaurant hosts, especially when there are so many men doing that job throughout the country.
12

I thank all of you for your insights. I did not bring up any of my issues today when I spoke with Manager 2… but he did explain to me his irritation, and also informed me that they were never under the impression that I was making a permanent move to the host stand… and never intended for that to be the case. Hearing that, I nodded, and took the safer course. I told M2 that I would bus on Saturday, if he would be willing to allow me only a two server station, to which he readily agreed. I did, however, make the comment that I felt M1 had been badgering me on Monday, and it upset me that he would continue to hammer a point. And I think my biggest problem with how HE (M1) handled it… and why I was willing to listen to M2… is that M2 explained the reasoning behind wanting me to bus… after informing me that, had he been making the schedule, I just would have been scheduled as a busser. To which I responded that we would have ended up having the same conversation, but from a different angle.

Again, I thank you all… This has definately given me some insight into how more of this works (I worked part-time, retail… you don’t deal with this nearly as much as a part-timer).

And, incidentally, I’m in Northern VA.

W/A