A) I own a fancy expensive restaurant. A waiter (male) comes back from a vacation. He presents himself with a simpering lisp, exaggerated mincing walk and hip swaying, keeps his wrists limp whenever possible, and when standing cocks his hips, places his upper arm flush against the side of his chest while holding his forearm at a steep V-angle, and gesticulates towards things only by folding his wrist and unfurling his fingers until only his index finger comes into play. In other words, except for costume and make-up an exaggerated, unreal-idea of effeminate mannerisms that some male homosexuals choose to display.
B) I own a fancy expensive restaurant. A waiter comes back from a vacation with a ton of tattoos running down his neck, a scraggly beard, and a rough tough guy Hell’s Angel’s attitude.
I think that neither A) nor B) are suitable for the atmosphere of the business I am running.
In both cases, can I fire the waiter, without being sued?
I can’t see why not. Waiters aren’t unionized, and “failure to uphold the public image of the restaurant” is a fireable offense pretty much anywhere. You don’t even have to give a reason. Probably better if you don’t, in fact. Just “Larry, you’re fired. Get out.”
Yes, you can, at least in at At-Will state. You could also fire him because he wore a t-shirt you didn’t like, didn’t call you “Captain” when referring to you or because it’s Tuesday and you’re in the mood to fire someone. Of course, if you use one of those reason you’ll likely end up paying out unemployment, but you can still fire him for it.
Depends on the state and local laws. In many places, it is still legal to fire someone based on their sexual orientation. Where it isn’t legal to discriminate based on orientation, you could still argue that the firing was based on the waiter’s presentation rather than orientation, though I don’t know how that would work out.
I can think of a few times when a waiter has been very flamboyantly effeminate. In every case, he was funny, friendly, made good recommendations, got the order right, kept my drink refilled, got the bill right, and received a huge tip. It would be most unwise for the owners to fire such waiters.
I don’t recall ever being waited on by a Hell’s Angel when I was expecting a well-mannered guy with a French accent. But you know, I could see someone pulling it off as long as he doesn’t stink and doesn’t threaten anyone.
It’s your restaurant you can hire and fire at will, and you don’t have to give a reason. However, if you were to hint at some sort of discrimination that would be bad ethically and possibly enough reason for the employee to report to the authorities that he felt discriminated against.
Also depends on how big an operation. The federal non-discrimination laws, for example, apply to businesses with 15 or more employees. The Washington State law applies to businesses with 8 or more employees.
I think the OP’s question A is really about whether some characteristics that are stereotypically “gay,” can be the basis for termination if you’re not exactly firing him for being gay. I think, in the end, that would be a jury question about your true motivation.
Doesn’t option A basically describe half the male waiters? Unless its a biker bar, what would be the grounds that it’s not your image? (And according to a friend, you should wonder about most biker-bar types too…)
(B) is easier. You should be able at any time to refuse to allow unpresentable “presentation” not in keeping with the restaurant’s tone. The only grounds he might have to appeal is that you are making up new rules after the fact, if this was not in the employee handbook to start.
As for unions - most union contracts have the rules that you can only fire for cause - insubordination, theft, habitual lateness after being warned, that sort of thing. Otherwise, if employees are not needed then they are laid off in order of reverse seniority. Assuming the contract allows for the “suitable appearance” rules - If the employee handbook requires presentable appearance, then you can fire someone who fails to conform to the rules as agreed to with the union.
If there is a dispute as to the contract or the fairness of the firing, then there is likely a union arbitration process laid out in the contract… So it may cost you lawyer fees and time to establish the precedent.
Well, in most states (At-Will) , you can call in anyone who doesn’t have a contract and say “I am sorry, you aren’t working out. Thanks, here’s your final check. “.
As long as you don’t try and screw them out of Unemployment, don’t say anything bad about them to their next job, and pay them everything due, you’re golden. Unless you fire for cause, or have a massive lay-off, never explain why.
Just FTR but here in the UK and much of Europe you can’t just fire employees on a whim. At least, not if they work full-time and have been employed for a year or more.
(Reasons like gross misconduct and redundancy are obviously fine)
I think it is possible to come up with an example where this may be unfair to an employer, but the OP is not it, to me. I don’t give a damn if my waiter is effeminate or has tattoos and society (and therefore the law) should not pander to such attitudes.
w.r.t. the hell’s angel, if “rough, tough” attitude includes being rude to customers or colleagues then that’s different and of course he can ultimately be fired. And if he’s serving food, then a rule in his contract that he must be clean-shaven or keep facial hair short may be fine.
Unless a jury thinks you’re doing it because they’re gay (in a few places) or a protected racial or ethnic group, etc. Most people don’t say they’re firing you because you’re Black, they say things like “I’m sorry, you aren’t’ working out.”
As is often pointed out here, anyone can sure you for anything. Winning is a whole different story, and that’s probably what you meant.
On the other hand, many people love nuisance suits that they have no chance of winning, because they think it is an easy way to get some quick settlement cash.
I think the “comes back from vacation” implies that he acquires these mannerisms while he was away, or decided to stop repressing them. IOW, he didn’t act like that before he went on vacation.