# 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:** 3
**Author:** ![JerseySwamps](https://avatars.discourse-cdn.com/v4/letter/j/e9a140/32.png) [@JerseySwamps](https://boards.straightdope.com/u/JerseySwamps)\ **Post date:** [March 9, 2013, 12:57am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/41 "2013-03-09T00:57:31Z")
> [@Leo\_Bloom](#): > > 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. Sigh. How exactly does one cite a thought? Should he post a reference to The Roderick Femm Book of Thoughts, Hopes, and Dreams? Instead of asking for a cite, why don’t you just have the guts to say that the poster is wrong? ---
**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 9, 2013, 12:59am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/42 "2013-03-09T00:59:05Z")
> [@Leo\_Bloom](#): > > Obviously (or not) I was just in a similar situation to example A), as a diner. This being GQ and all, I will quote you to yourself. You were a diner, not the restaurant owner. The very experience of being served by a waiter as described in A) prompted you to pose a question about firing such a person (and you added in B) just so it wouldn’t be too obvious). You made no mention anywhere about bad service from this waiter; you wondered if he could be fired just for being effeminate. QED, more or less, your effeminate waiter made you uncomfortable. Otherwise why talk about firing him? Idle curiosity? Roddy ---
**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 9, 2013, 1:06am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/43 "2013-03-09T01:06:39Z")
I feel like I’m in the Zimmerman/Martin thread in the other room… He could simply be worried about CUSTOMERS being uncomfortable with the employee in question. I hate one of my employees, but he makes me money. At the end of the day, since he makes me more money than most of the alternatives and shows up to work every day, I’ll keep him until something changes. If his hateable behaviors cost me a nickel in profit a day, though, then it’s a whole different ballgame. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [March 9, 2013, 1:19am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/44 "2013-03-09T01:19:16Z")
nm ---
**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 9, 2013, 1:42am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/45 "2013-03-09T01:42:16Z")
> [@Roderick\_Femm](#): > > This being GQ and all, I will quote you to yourself. > > You were a diner, not the restaurant owner. > > The very experience of being served by a waiter as described in A) prompted you to pose a question about firing such a person (and you added in B) just so it wouldn’t be too obvious). > > You made no mention anywhere about bad service from this waiter; you wondered if he could be fired just for being effeminate. > > QED, more or less, your effeminate waiter made you uncomfortable. Otherwise why talk about firing him? Idle curiosity? > Roddy Well, his first-listed interest in his profile _is_ “butchery.” ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [March 9, 2013, 1:47am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/46 "2013-03-09T01:47:22Z")
> [@denquixote](#): > > Just replace him with a gay male and you are covered. Even this strategy may not be a sure-fire free pass. I mentioned in another thread recently, that I studied real estate and landlord/tenant discrimination law, about 15 or so years ago. (I was doing a term paper on the subject of words/phrases that could get you in trouble in advertising.) I didn’t just read op-ed pieces – I actually went to a law library and read a lot of cases. In one case, the issue came up that a landlord had turned away a black prospective tenant for some reason, and had then rented to a different black tenant. The rejected black tenant sued the landlord, claiming discrimination, and won. I don’t remember what the logic was, except that there _was_ some logic that seemed contrived and convoluted to me, and I’m pretty sure I didn’t really understand it even then. ---
**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 9, 2013, 2:41am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/47 "2013-03-09T02:41:32Z")
Evidence that X does not discriminate in all cases does not give rise to the inference that X did not discriminate in Y case. In employment discrimination cases, plaintiffs frequently obtain data regarding other personnel in the class allegedly being discriminated against to demonstrate a pattern. However, the fact that a pattern cannot be shown does not necessarily mean that discrimination did not occur. In other words, if you tell Steve you won’t hire him because he’s black, it makes no difference whether you hire another black guy. If Steve alleges employment discrimination and his _only evidence_ is your hiring pattern, it might. ---
**Author:** ![actualliberalnotoneofthose](https://avatars.discourse-cdn.com/v4/letter/a/e79b87/32.png) [@actualliberalnotoneofthose](https://boards.straightdope.com/u/actualliberalnotoneofthose)\ **Post date:** [March 9, 2013, 6:01am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/48 "2013-03-09T06:01:04Z")
When I was a kid 30+ years ago I grew up in area where everyone and his family worked in a restaurant at some point. Even back then, when homosexuality was a lot less accepted, the guy in a. Would have been the norm and not the exception for male dining room staff. Not all gays are flamboyant, of course. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [March 9, 2013, 3:12pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/49 "2013-03-09T15:12:51Z")
Mincing isn’t the same as gay. Indeed, if I fired someone for mincing that would be the core of my PR and, if need be, legal defense: “it was about his behavior, not his sexual orientation, which is irrelevant.” It’s different from _Price Waterhouse_ because that was “a woman behaving in a way deemed inappropriate for a woman” and this is “a man behaving in a way deemed inappropriate for anyone.” ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 9, 2013, 4:13pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/50 "2013-03-09T16:13:48Z")
> [@Leo\_Bloom](#): > > In both cases, can I fire the waiter, without being sued? If the situation is real, then you seem concerned about the employees legal rights, good, most employers are not. If the situation is real and you wish to terminate an employee, and are not sure of the legality, consult an employment law attorney. Laws are vast. For example, I do know from past research that Waashington, D.C has a ban on terminating an employee due to appearance. Even Montana, which has abrogated at will employment by statute, a non probation termination MUST fall under a Just cause exception. At a law library there are Volumes of law digests called COA, which stands for Causes of Action. There is a vast outline of various COA requirements for lawsuits. One volume deals with Cause of Action for termination of at will employee or some such wording. It deals with when an employee who was employed “at will” has a basis for wrongful termination. It makes interesting legal reading. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [March 9, 2013, 4:27pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/51 "2013-03-09T16:27:15Z")
In _Oncale v. Sundowner_, written by noted liberal floofypants, Antonin Scalia, the Supreme Court found that men sexually harassing another man was a form of sexual harassment recognized by law, even if all parties were factually heterosexual. Prevously, it had been uncertain if a man could discriminate against another man “on the basis of sex” and the lower court had dismissed the action. The SC didn’t really get into what role Oncale’s perceived sexuality played. I would argue though, that it was an extreme case that doesn’t necessarily apply to the question. There was no question that none of the the harassing behavior was work related at all. Oncale was physically humiliated and sexually assaulted in his workplace on numerous occasions, and quit because he thought he would be raped at work. The SC’s opinion is short and limited, and probably can’t be extrapolated to firing someone because they “seem gay.” [http://www.law.cornell.edu/supct/html/96-568.ZO.html](http://www.law.cornell.edu/supct/html/96-568.ZO.html) ---
**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 9, 2013, 6:19pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/52 "2013-03-09T18:19:53Z")
> [@lawbuff](#): > > … > > Laws are vast. For example, I do know from past research that Waashington, D.C has a ban on terminating an employee due to appearance… Could you even get a partial cite for me, and I will try to do the rest? IANAL, and of course have no bibliographic knowledge.to look it up from your hint. IAN seeking legal advice of any kind. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [March 9, 2013, 7:04pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/53 "2013-03-09T19:04:21Z")
New York city includes “perceived” … race, gender, sexual orientation, etc. in the NYC human rights law. NYC admin code 8-107 ---
**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 9, 2013, 7:06pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/54 "2013-03-09T19:06:17Z")
[Here you go](http://ohr.dc.gov/protectedclasses). ---
**Author:** ![elbows](https://avatars.discourse-cdn.com/v4/letter/e/b3f665/32.png) [@elbows](https://boards.straightdope.com/u/elbows)\ **Post date:** [March 9, 2013, 8:00pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/55 "2013-03-09T20:00:30Z")
Here’s how it works, you can fire him, either way. Usually they get the jerkiest manager to pick a fight, or screw the schedule and shifts around till they quit, or just wait for them to make an error, which will happen. Break a dish, annoy a customer, whatever. Just that easy, truly. There is no such thing as job security in the service business. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [March 9, 2013, 8:24pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/56 "2013-03-09T20:24:29Z")
> [@elbows](#): > > Here’s how it works, you can fire him, either way. Usually they get the jerkiest manager to pick a fight, or screw the schedule and shifts around till they quit, or just wait for them to make an error, which will happen. Break a dish, annoy a customer, whatever. Just that easy, truly. > > There is no such thing as job security in the service business. Of course, obvious harrassment by management, or discrimination in terms of scheduling, will be additional ammunition in a lawsuit; plus, when “jerkiest manager” is named as co-defendant in lawsuit, and given the choice to turn on you or lose his life savings to lawyer fees… He’ll happily testify that you said “We need to fire Bruce because he acts like a fag.” If you put that in an eMail, even stupider. I recall reading about one sexual harrassment case where the management was held accountable for not stopping the cook at a restaurant. To get even with the waitress who turned him down, he continually messed up her orders so she got no tips. She complained, nothing was done (he was a good cook) so management was on the hook. Messing with workplace conditions is harrassment. The question is whether it falls under protected class. You also assume the rest of the staff is on your side. Obviously, this is due to your charm and good nature as their boss. The women there especially will think it’s hiilarious to pick on fags and will happily perjure themselves to defend you in a lawsuit - won’t they? ---
**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 9, 2013, 9:13pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/57 "2013-03-09T21:13:53Z")
I suspect this issue has been addressed before, but in a different guise. Could you fire a black guy for talking and dressing like an extra in a rap video (e.g. “let me axe sumthin.”, “word”, “it’s hella good”, etc.) with all your customers? What if one of your employees decided to start cross-dressing? Also, making customers feel comfortable is a standard duty of every service industry job. If a persons behavior (voluntary or not) interferes with that, they’re not performing a legitimate duty of the job. ---
**Author:** ![msmith537](https://avatars.discourse-cdn.com/v4/letter/m/d9b06d/32.png) [@msmith537](https://boards.straightdope.com/u/msmith537)\ **Post date:** [March 9, 2013, 9:29pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/58 "2013-03-09T21:29:24Z")
> [@Leo\_Bloom](#): > > 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. > [@dstarfire](#): > > I suspect this issue has been addressed before, but in a different guise. > > Could you fire a black guy for talking and dressing like an extra in a rap video (e.g. “let me axe sumthin.”, “word”, “it’s hella good”, etc.) with all your customers? What if one of your employees decided to start cross-dressing? What’s the big mystery? You can absolutely fire an employee for not adhering to dress code or professional conduct (which I assume does not include “biker” or “rap video”). ---
**Author:** ![C.Montgomery\_Burns](https://avatars.discourse-cdn.com/v4/letter/c/ecd19e/32.png) [@C.Montgomery\_Burns](https://boards.straightdope.com/u/C.Montgomery_Burns)\ **Post date:** [March 9, 2013, 11:17pm UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/59 "2013-03-09T23:17:17Z")
Regardless of laws, I would have no problem firing either one if they were costing me customers in any serious way. What is legal is probably a different matter. But it’s my business, and I should be able to hire or fire as I see fit. ---
**Author:** ![JerseySwamps](https://avatars.discourse-cdn.com/v4/letter/j/e9a140/32.png) [@JerseySwamps](https://boards.straightdope.com/u/JerseySwamps)\ **Post date:** [March 10, 2013, 1:36am UTC](https://boards.straightdope.com/t/i-own-a-restaurant-can-i-fire-a-waiter-due-to-his-off-putting-mannerisms/652389/60 "2013-03-10T01:36:46Z")
> [@C.Montgomery\_Burns](#): > > Regardless of laws, I would have no problem firing either one if they were costing me customers in any serious way. What is legal is probably a different matter. But it’s my business, and I should be able to hire or fire as I see fit. +1 for the user name/post combo Do you release the hounds on them as well? [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=2) [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=4)