# I own a restaurant. Can I fire a waiter due to his off-putting mannerisms? **URL:** \ **Category:** Factual Questions\ **Created:** [March 8, 2013, 3:39pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389 "2013-03-08T15:39:03Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 8, 2013, 6:03pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/21 "2013-03-08T18:03:24Z")
Just as a point - you can fire anyone (outside of a union contract) at anytime in Canada too, without cause, but you then are liable for separation pay. Depending on length of service and several other criteria, firing a long-time employee can be costly. Legal minimum though, tends to be 2 to 3 weeks’ pay. ---
**Author:** ![dracoi](https://avatars.discourse-cdn.com/v4/letter/d/90db22/32.png) [@dracoi](https://boards.straightdope.com/u/dracoi)\ **Post date:** [March 8, 2013, 6:13pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/22 "2013-03-08T18:13:26Z")
I also want to point out that the odds of being successfully sued in either case may depend a lot on the wording of your contracts, employee handbooks and on other procedures. For example, my employee handbook says “No visible tattoos.” Period, end of discussion. A scraggly beard isn’t specifically prohibited, but would reasonably be included in our standards of hygiene and personal appearance. So B should expect that I’d fire him, and I’d have a very strong case that I wasn’t discriminating against him for any reason that would be protected (religion, gender, etc.) (As a real-life example of this: I once had an employee who wore a lot of long-sleeved blouses and scarves. We made it work despite what was virtually full-body tattoos.) The effeminate behavior would be a tougher one to protect yourself against, but it would also come down to documentation if it went to court. A good restaurant should have some kind of standards about how to behave around customers. These may not be written when it comes to mannerisms, but if you document (in diary form and in written warnings) what behavior is a problem and what your expectations are, then you’d have a reasonable chance of being able to fire the guy without giving him strong grounds to sue. ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [March 8, 2013, 6:23pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/23 "2013-03-08T18:23:35Z")
> [@Sigmagirl](#): > > 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. I was confused about that too. How does that conversation go? Manager: Uh, Larry? You, uh, got a second? Larry: Sure Sweetie! M: You feeling OK man? Ever since you came back you seem…different… L: CRAZY story! I got hit on the head by a falling coconut and now I’m GAY! Can you believe it?! M: Uh… L: Gotta scoot, Ernesto’s waiting in the car – TOODLES! ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 8, 2013, 6:24pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/24 "2013-03-08T18:24:37Z")
> [@Joey\_P](#): > > 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. This is an overgeneralization. Even in at-will states, federal law prohibits termination on the basis of suspect classifications. The laws may make sexual orientation a suspect class in a given jurisdiction (not just a state, but a county, municipality, etc.) ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [March 8, 2013, 7:07pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/25 "2013-03-08T19:07:50Z")
I suggest remembering that this could become a public relations issue if the local media picks up on the firing as a gay rights issue. Bad press can be the equivalent of a $25,000 advertising campaign but in reverse. Pretty sure I’d fire him, myself, but I’d bear the above in mind. ---
**Author:** ![denquixote](https://avatars.discourse-cdn.com/v4/letter/d/b9bd4f/32.png) [@denquixote](https://boards.straightdope.com/u/denquixote)\ **Post date:** [March 8, 2013, 7:31pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/26 "2013-03-08T19:31:24Z")
Just replace him with a gay male and you are covered. ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [March 8, 2013, 7:56pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/27 "2013-03-08T19:56:45Z")
> [@zoid](#): > > I was confused about that too. > > How does that conversation go? > > Manager: Uh, Larry? You, uh, got a second? > Larry: Sure Sweetie! > M: You feeling OK man? Ever since you came back you seem…different… > L: CRAZY story! I got hit on the head by a falling coconut and now I’m GAY! Can you believe it?! > M: Uh… > L: Gotta scoot, Ernesto’s waiting in the car – TOODLES! OK, I have a real-life story something like this. A man with whom I used to work, apparently straight, certainly married, fell down some stairs one day at a sports stadium, and hit his head against the concrete wall at the bottom. He was out of work for a while, but everyone thought he had recovered. But when he came back to work, he started coming up behind guys at the restroom urinals and touching them (I don’t have specifics about where) and saying suggestive things. He was out before the day was over. So it can happen. But I just think the OP is uncomfortable around effeminate men. Roddy ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [March 8, 2013, 8:10pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/28 "2013-03-08T20:10:03Z")
Where the hell are these people vacationing? It’s scary to think I could spend a week on Fire Island or in Sturgis, South Dakota and come back radically transformed. ---
**Author:** ![Bones\_Daley](https://avatars.discourse-cdn.com/v4/letter/b/bc8723/32.png) [@Bones\_Daley](https://boards.straightdope.com/u/Bones_Daley)\ **Post date:** [March 8, 2013, 8:55pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/29 "2013-03-08T20:55:34Z")
Anybody who actually owned a restaurant wouldn’t need to post on this forum to decide the answer to the question, IMO … ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [March 8, 2013, 9:15pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/30 "2013-03-08T21:15:36Z")
> [@Roderick\_Femm](#): > > …But I just think the OP is uncomfortable around effeminate men. Cite? You can think what you want, but it would behoove you to show me a single jot of evidence, this being GQ and all. In fact, don’t bother wasting my time. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [March 8, 2013, 9:24pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/31 "2013-03-08T21:24:43Z")
> [@edwards\_beard](#): > > How long was the vacation that example B could grow out a scraggly beard? I could become quite scraggly in two weeks. I wouldn’t look quite like a Hell’s Angel, but I would look quite inappropriate for the purposes of the OP. ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [March 8, 2013, 10:02pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/32 "2013-03-08T22:02:41Z")
> [@Acsenray](#): > > I could become quite scraggly in two weeks. I wouldn’t look quite like a Hell’s Angel, but I would look quite inappropriate for the purposes of the OP. OK fine, but how long to develop the simpering lisp, exaggerated mincing walk and hip swaying? ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [March 8, 2013, 10:03pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/33 "2013-03-08T22:03:50Z")
If he tries it at Sturgis, perhaps longer than his remaining lifetime… ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [March 8, 2013, 10:33pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/34 "2013-03-08T22:33:59Z")
> [@Mr.Slant](#): > > If he tries it at Sturgis, perhaps longer than his remaining lifetime… 😕 ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [March 8, 2013, 10:44pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/35 "2013-03-08T22:44:31Z")
Macho environment, really-not-macho mannerism, social friction, risk of violent conflict… Any time I have to explain a joke, I have failed. Thus, I have failed today… ---
**Author:** ![Maggie\_the\_Ocelot](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@Maggie\_the\_Ocelot](https://boards.straightdope.com/u/Maggie_the_Ocelot)\ **Post date:** [March 8, 2013, 10:58pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/36 "2013-03-08T22:58:35Z")
> [@zoid](#): > > I was confused about that too. > > How does that conversation go? > > Manager: Uh, Larry? You, uh, got a second? > Larry: Sure Sweetie! > M: You feeling OK man? Ever since you came back you seem…different… > L: CRAZY story! I got hit on the head by a falling coconut and now I’m GAY! Can you believe it?! > M: Uh… > L: Gotta scoot, Ernesto’s waiting in the car – TOODLES! Maybe he was assaulted with a tent peg… ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [March 8, 2013, 11:02pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/37 "2013-03-08T23:02:14Z")
Don’t take it so hard, Slant. I nearly burst a gut. For Leo, Sturgis is a festival in South Dakota for motorcycle enthusiasts that draws people from all over. I only know this because it featured in a few episodes of Pawn Stars. ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [March 8, 2013, 11:03pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/38 "2013-03-08T23:03:23Z")
Thanks! ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [March 8, 2013, 11:24pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/39 "2013-03-08T23:24:33Z")
OK, let’s set forth some basics. First, the general rule in the United States is that employment is at-will. That is, at any time, either the employer or employee may terminate the employment relationship for any reason (even irrelevant or obnoxious ones, or for no particular reason at all). This rule may be varied in two principal contexts. One, the parties may have a contract which specifies that termination will occur only for specfic reasons established via a specific disciplinary process. Oftentimes, this is done by a union’s collective bargaining agreement, but the critical factor is the existence of that contract, not necessarily the existence of a union. (A union could, after all, decide not to negotiate such a provision; perhaps they think that can get more favorable terms on other matters by not insisting on for-cause termination.) Alternatively, the law may forbid certain characteristics from serving as the basis for the termination. This is what the Civil Rights Act and other similar statutes do. Characteristics that do not have statutory protection may serves as grounds for termination. It would be very stupid for me to fire an otherwise good and productive employee because he/she is a big Justin Bieber fan. But Justin Bieber fanhood is not a protected class, and if I wish to fire such a person, the courts will not undo that decision. Lots of people (perhaps even some attorneys on this board) might think that (A) is allowed. Or at least allowed in jurisdictions where sexual orientation is not a protected class. But! [_Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989)](http://en.wikipedia.org/wiki/Price_Waterhouse_v._Hopkins) should give them pause. In _Hopkins_, a woman employee of the accounting firm Price Waterhouse alleged she was passed over for promotion to partner because her employer saw her as too brusque/aggressive and insufficiently ladylike for their tastes. Evidence was introduced showing that the her PW evaluators did not simply mention Hopkins’ penchant for abraviseness, but also connected these to their perceptions of her feminity / expectations of womanly behavior in general. Hopkins also introduced evidence showing that she had demonstrated exemplary performance and business development at PW prior to her being passed over. The Supreme Court agreed with the courts below that Title VII outlawed this kind of sex stereotyping. > [@](#): > > In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. > > . . . As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for, “\*n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” > > An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind. (internal citations omitted) So the question here, after _Hopkins_ is: Is the employer subjecting the terminated employee to an adverse consequence for his mannerisms that the employer would not subject an employee of the opposite sex? That is, is the adverse action due to disfavor for the mannerisms in general (and would get both men and women fired; as say, someone too shy and retiring at a workplace that prides itself on aggressive sales techniques)? Or because it was perceived as unmanly? ---
**Author:** ![Ulf\_the\_Unwashed](https://avatars.discourse-cdn.com/v4/letter/u/b4bc9f/32.png) [@Ulf\_the\_Unwashed](https://boards.straightdope.com/u/Ulf_the_Unwashed)\ **Post date:** [March 9, 2013, 12:28am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/40 "2013-03-09T00:28:06Z")
Really interesting, **Kimmy Gibbler**. Thanks! [Previous page](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389.md?page=1) [Next page](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389.md?page=3)