Posted: Mar 19, 2019
Diners who experience inappropriate comments are often left with little recourse
The deli had delicious sandwiches. The kind of food you crave suddenly and without warning, the kind that makes you wish you lived close enough to eat it every day. Andrea and her husband loved this deli, and when they found out Andrea was pregnant, it was where they went to celebrate. They were trying to take a photo of themselves with the ultrasound when the owner came over, joking that he didn’t know this “was a photo studio,” Andrea remembers.
It was innocuous at first, just an older man making conversation with them. He turned to Andrea’s husband, asked, “Are you the one who did this?” and it was uncomfortable but they said yes, it’s our baby. The owner gave them unsolicited advice: “You should get a private room so you can get started on number two before you even leave the hospital.”
Andrea was glad her husband was there as a buffer. “It seemed like it would be easier just to laugh along than to say anything,” she says of the drunk-uncle routine from a complete stranger. The owner was an older man, which probably changed her reaction to the increasingly outlandish things he said. “I think his intentions were good in asking [about the ultrasound], but then it went too far in joking around.”
In the midst of the #MeToo movement, restaurants have come under scrutiny for being hotbeds of harassment. Laws like the Equal Employment Opportunity Act make a hostile work environment illegal, but the industry is still clearly figuring out how to live up to the spirit of the law: Guests harass servers who have to put up with pointed comments and requests for dates; managers or owners hire staff based on their appearance, as though their businesses are a setup for a Bachelor spinoff; and of course, prominent chefs and restaurant owners have been credibly accused of sexual misconduct and harassment by their employees. The first wave of #MeToo stories in the restaurant industry has focused on these overt forms of harassment where employees, held hostage by their need for a paycheck, have been bearing it from guests and coworkers for far too long; the type of harassment that festers alongside unequal power structures of tipped and non-tipped workers or the long-stewing “boy’s club” mentality in professional kitchens.
It might be unexpected for, say, a bank teller to hit on his clients, but it’s not out of the ordinary for a bartender.
Yet the conversation has largely side-stepped what happens to guests at restaurants, a grayer area that’s informed (or not) by a lack of legal accountability, the strange dynamic between server and customer, and the fact that the definition of “good hospitality” varies from person to person. We assume not only that the customer is always right but that they always have the power — to walk away, to find a new place to eat, to complain to a manager — so little attention has been paid to how often misconduct happens to guests, too.
“I’ve never heard explicit rules about flirting or hooking up with guests at any of the bars and restaurants where I’ve worked,” Boston bartender and author Frederic Yarm wrote in an email. “I think the restaurant life attracts free spirits, so the culture is more permissive.” It might be unexpected for, say, a bank teller to hit on his clients, but it’s not out of the ordinary for a bartender. This creates a situation in which it can be hard to set boundaries between guests and staff; if those distinctions aren’t properly spelled out, problems can arise.
Hospitality in the U.S. tends toward gregariousness and treating customers “like family,” but the way a staff member may treat a customer, the amount of deference or familiarity between the two parties, ranges wildly. A lot of this is intuitive, the ability to tell if a customer would welcome a friendly conversation or prefer to be left alone to enjoy their drink quietly. Or, as Yarm puts it, “Hospitality is about being an advocate for the guest and looking out for their best interest.” The famous bar creed of “don’t be creepy” just isn’t specific enough.
New Yorker Suzy Exposito still remembers the time that a male barista held her coffee hostage until she smiled. Exposito refused. “It’s uncomfortable to be told to smile for a service I paid for,” Exposito says. “[He] might have thought he was being cute and flirty, but in reality, he was setting up a situation where he had the power to demand something from me because he had something I wanted — and literally bought.”
In college, Exposito used to visit a pizzeria every Wednesday with a boy she babysat. “It was a really fun tradition for us,” she remembers. “We’d sit and eat pizza and talk about our week.” But the store’s manager was an older man who insisted on serving them whenever she stopped in. “Every single time he would ask how old I was, if I had a boyfriend, if I lived alone, if I liked older men. He would make comments about my body in front of the kid,” Exposito says. It got so bad that she had to explain to the boy that they needed to find a new pizzeria. She was only 23 at the time, and there wasn’t a manager she could complain to about the man. “Today,” she says, “I’d totally rip this guy a new one on Yelp!”
When it comes to fighting against sexual misconduct or other behavior by employees or managers of a restaurant, one bad review feels like a puny weapon. But it’s often the only one: There’s little established support or recourse for guests who have encountered behavior ranging from uncomfortable to predatory at a bar, restaurant, or nightclub. They can complain to a manger, never patronize the establishment again, or leave a Yelp review to warn future customers (or all of the above). While there are organizations that protect consumers’ rights, they exist to prevent things like fraud — not to oversee behavior.
According to restaurant and hospitality attorney Kimberly Summers, even in particularly egregious cases involving assault, restaurant owners aren’t liable for the actions of their employees unless it can be proved that an employee committed a crime in the course of performing their job. In the case of a lawsuit filed against Houston restaurant Brennan’s in late January, which alleges that a former (and now deceased) bartender drugged a customer’s drink, over-served her alcohol, then sexually assaulted her, a bartender’s duty is to serve drinks, Summer says — drugging the drink is a criminal action outside that scope. That’s a marked difference from laws preventing harassment in the workplace under the Equal Employment Opportunity Act, which only protect workers.
Relying on a feedback loop between businesses and customers to fix bad behavior isn’t a good model. Customers have complicated reasons for why they patronize one business over another — convenience, price, tradition, the food — and whether they had a bad experience with one employee is just part of the equation. Exposito kept returning to the pizzeria that made her uncomfortable until the manager crossed one line too many.
As for the deli owner with the inappropriate comments, Andrea says the food is good and there aren’t many other options in town at that level. “We’ll go back,” she says, though she adds that she’ll probably try not to make eye contact with the man and to avoid him if she can. “This is an institution that preexisted him and will outlive him. It’s not about this guy,” she says.
In other words, a Yelp review of the place might read, “Best sandwiches in town. Owner might make sex jokes about you. Weird vibes.” Four stars.
By Tove Danovich
March 18, 2019
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