Ask The Lawyer By: Daniel A. Gwinn, Esq.- Can Worker Sue For Harassment?

Image by Mohamed Hassan from Pixabay


QUESTION: I work at a country bar and restaurant. For some reason, the owner decided a few months ago to go country-retro with a tribute to some TV show from the 70s. Uniforms for staff used to be jeans and plaid shirts, with cowboy boots if we had them. Now, women must wear super-short shorts that the owner calls “Daisy Dukes,” and a low-cut, skin-tight top. And heels. The guys’ “uniform” is much better: jeans with a button-down shirt (although the top three buttons of the shirt have to be open). Some of our customers seem to think the new uniforms are an invitation to play touchy-feely, touching us — especially on the behind. When I complained to the manager (and I wasn’t the only one to complain), he told me to smile, gently brush the customer’s hands away (!!!), and look forward to receiving some really good tips. I am not comfortable going to work in this ridiculous outfit. I feel demeaned and debased by the customers’ wandering hands. Is there anything I can do to make the owner change the uniform policy?

ANSWER:     Well, you could tell him the uniforms could earn him a discrimination lawsuit. What you are describing is a form of sexual harassment. Normally, employers aren’t legally responsible when a worker is harassed by a customer — but there are exceptions. If employers know about the harassment and take no action, they may be sued for sex-based harassment and discrimination under Title VII of the federal Civil Rights Act and under Michigan’s Elliott-Larsen Civil Rights Act.

Way back in 1980, the federal court for Michigan’s Eastern District recognized that “a sexually provocative dress code imposed as a condition of employment which subjects persons to sexual harassment” could violate Title VII. But the Court never had to decide the issue; the employer agreed to modify the uniform before the case went to trial.

The following year, a federal court in New York ruled in favor of a lobby attendant who was fired after refusing to wear a “Bicentennial” uniform that basically consisted of a poncho and “dancer pants.” A witness described the effect of the uniform: “When she moved, of course, it fluttered and since it was very open and since there were slits everywhere, it was more provocative than a still picture because you never knew what you were going to see next. Sometimes you would see something, sometimes you wouldn’t.” The plaintiff in the case, who wore the uniform for two days before refusing to wear it again, said she experienced “all kinds of harassments, abuses, propositioning’s and ridicules.” On top of that, the uniform interfered with her ability to do her job.

The court recognized that an employer’s considerable discretion to impose a dress code, did not mean that an employer could require its employees “to wear any uniform the employer chooses.” By requiring the plaintiff to wear the flimsy uniform, the employers violated the woman’s right to be free from sexual discrimination and made “acquiescence in sexual harassment by the public … a prerequisite of her employment.”

Yet some employers still require women to wear sexy outfits to work and — in some situations — they can get away with it. For example, cocktail waitresses at Borgata’s Casino, whose uniform basically consisted of a black corset and heels, were viewed as agreeing to the well-known uniform when they applied to be a “Borgata Babe.” Waitresses at Hooters, who wear low-cut tops, are also viewed as agreeing to wear the uniform when they accept the job.

The focus in the law is often on whether an employer has a bona fide reason to require revealing uniforms. A restaurant like Hooters, a casino, or a strip club might claim that a sexy image is part of its established business model. Most restaurants and bars cannot make the same claim. — and neither can most businesses. (Can you imagine being asked to wear a mini and heels as a uniform in an accounting office?)

But even if employees are OK with revealing uniforms, an employer has a duty to protect them from harassment. Employers like yours, who ask you to endure it, are asking for a litigation.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]