Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
Law of Work Archive

Can a Bar Give Preference to Women in Server Positions?

by David Doorey November 22, 2012
written by David Doorey November 22, 2012

Here’s a fun question that I often discuss in my employment law class.  In a lot of popular bars in Toronto you will find that the floor servers–wait staff, hosts, bartenders–are women.  Men, meanwhile, almost always predominate in the back kitchen areas.  The floor staff earn the big bucks, because they take the lion’s share of the tips.  So there can definitely be a financial benefit to working on the floor.  Now, what if the bar has a policy of preferring women floor staff over male floor staff, perhaps on the theory that having ‘pretty women’ servers will add to the hipness of the bar’s image and attract more paying customers?   Would that policy amount to sex discrimination under human rights laws?
A recent decision of the Ontario Human Rights Tribunal touched on this question, though doesn’t provide a clear answer.  The case is called Mason v. Clearlane Investments (aka ‘The Quail and Firkin). Mason was a male ‘busser’.  The Tribunal accepted the following as facts:

[5]         For the most part, men and women held different jobs for the respondent. Men worked as kitchen staff and bussers. Women held the jobs of table servers and bartenders. The gender make-up of these positions is confirmed in a staff summary dated November 30, 2010, prepared by the respondent.
[6]         Not surprisingly, bartenders and table servers earned more income than bussers because they received a higher tip percentage. This fact is not disputed by the respondent.

Mason argued that this practice of employing women table servers and male bussers and cooks discriminated against him on the basis of sex. Should he win?
The Decision
The Tribunal decided to exercise its power under Rule 19A.1 of the Tribunal’s Rules of Procedure, which says this:

19A.1  The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

Therefore, the question in this case was whether the complaint raises allegations which, if proven, give the complaint  a ‘reasonable prospect’ of success.   Mason would need to prove a violation of Section 5 of the Code, which prohibits discrimination in employment on the basis of sex.  The facts showed that women are servers and men are bussers, so there does appear to be a distinction based on sex. However, Mason nevertheless loses, because he had never applied for or requested a server position, and therefore was never denied the position.  Since he was never denied a server position, he could not now claim that he was disadvantaged due to his sex:

Tribunal:       The applicant has failed to establish that he was disadvantaged by the practice of placing women in the positions of bartender and table server because he never expressed interest in these positions and therefore was not denied these positions because of his gender. For this reason, the Application is dismissed.

Questions for Discussion
Now, employment law students, ask yourself this:  What if he had asked to be a server, and the employer had denied the request by saying that they prefer to have women working out on the floor?  Would the employer be violating the Code then?
If that would constitute sex discrimination, do you think that the employer could nevertheless defend itself by demonstrating that being a women is a bona fide occupational requirement of being a bar server?  Read Section 24(1)(b), where that defense is found.  What argument would the employer have to make to fit its ‘women server’ policy within that exception?  Would it succeed?

5 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
A Discussion of Discrimination in Job Ads
next post
"Unfair and Cruel" Dismissal of Employee Still Not "Bad Faith Discharge"

You may also like

A Cross Country Update on the Card-Check versus...

October 3, 2018

A Successful Strike Vote is All That Stands...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Putin Invites Trump to Moscow for Second Meeting...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 219 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
24 Feb

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
24 Feb

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.