Disservice Industry: Busting myths around employee workplace protections in bars and restaurants

Illustration by Teddy Rosen

Bars and restaurants are critical components for both enhancing and defining a community.

Most of them operate in a way that reflects the best of surrounding culture, but some have turmoil behind closed doors. Those most on the inside know it, but too often, there’s a gap of silence that stunts change and accountability.

When a recent post on Reddit identified a nationally celebrated Shawnee bar owner as a source of abusive behavior and cruel management, it was horrifying but equally unsurprising.

For those who spend more time planted in a booth than behind the swinging kitchen doors, it can be jarring to read how normalized these actions have become, maybe even in your own beloved neighborhood spot, and how silence has remained the default response—especially when other workplaces have made progress towards greater accountability. 

What began as a story for The Pitch about one toxic individual in a position of power brought us to interviews with former employees, witnesses, and industry pros, but all involved agreed that it was only the tip of the iceberg when it comes to abuses in the service industry. Instead of focusing on just one source of violated trust, we’re casting a wider net:

The best way to stop inappropriate workplace behavior is for people to stop behaving inappropriately. 

That is the real answer. Full stop. 

But because issues of alleged harassment, violence, discrimination, tipping violations, and more continue, a next step is for victims to stand up and demand better. This is far from a victim-blaming treatise; rather, a primer for when things feel the most hopeless.

One way to do that is by taking legal action. 

Sure, some employees leave a bad boss, but the general public usually doesn’t notice when a business has an unusually high staff turnover rate. If sales stay up, owners may see no reason to discipline anyone or change course. “They never did anything bad to me,” one may say as they brush off others’ experiences while local and national accolades roll in.

Maybe there are whispers from within the industry that an owner is more than unpleasant to work for, but that doesn’t help a newbie. Plus, some people might still chance it for the establishment’s notoriety and attractive pay. 

But at what cost? 

When trying to work within the system stops working for you, it’s time to go outside.

Filing reports of discrimination or harassment, or suing an employer, is not simple. But knowing one’s options when violence, wage theft, harassment, or other abuses have taken place may provide a path forward to accountability and the ultimate ideal: preventing the bad behavior from continuing.

The Pitch sat down with employment attorney Sarah Duggan of the firm Brown, Curry, and Duggan to address or dispel myths around reporting violations and even suing an employer. 

As a veteran of the service industry, Duggan decided to pursue a law degree after an employer smacked her rear, which was the breaking point after a history of “casual” sexism and inappropriate behavior from bosses.

Illustration by Teddy Rosen

Duggan recalls, “When I started working, I was 14. I thought I would do this work forever. I didn’t know what else to do, and I was good at it. And so, I remember being scared that I couldn’t get out of this industry. It’s the only thing I knew, and I didn’t have money for college or to go buy business clothes. So I put up with more than I should have.”

Now, she and her team take on cases big and small in the name of protecting humanity within the machine of capitalism. 

“It is about breaking the silence of that culture. Sometimes there’s got to be one person that just says, ‘Enough’s enough of this,’” Duggan says of her work advocating for victims in the industry she holds dear. 

The following is not legal advice but general information intended to help workers better understand their rights, limitations, and options.

Myth: There’s no one for me to report things to.

Truth: You still have options.

Many restaurants, bars, cafes, bakeries, breweries, etc. are small and do not have a human resources professional. It can make the idea of reporting someone, particularly to the perpetrator themself, feel pointless or even dangerous.

The fear of retaliation may stop someone from raising a concern, but reporting is an important part of the equation. 

If retaliation is piled on top of the initial harassment or discrimination, the law says there is only a case if the first part was reported. Technically, you can’t be retaliated against for something that a business doesn’t know.

Locally, employees can make reports to the Missouri Commission on Human Rights (MCHR) and the Equal Employment Opportunity Commission (EEOC). Reporting instances of discrimination or harassment to them is considered protected activity.  

Duggan explains: “Let’s say your boss slaps you on the ass at work. You don’t have to say, ‘Hey, don’t do that. I’m reporting my grievance to you.’ You can report it to the MCHR. That’s considered a protected activity. If you’re retaliated against for that, like, your shifts are cut, or you’re fired, then you could have a potential lawsuit after that.”

Bureaucracy can rear its head here though, so here’s where getting a lawyer may be beneficial: “The MCHR is super backed up, so sometimes they have their appointments as far as six months out, but lawyers can file it immediately. So it’s good to talk to a lawyer about it, to see if you can get it on file sooner rather than later,” Duggan explains.

Myth: It’s my word against theirs. I don’t have enough evidence.

Truth: True, but there may be more evidence than you think.

First, if you believe there may be evidence, perhaps on a security camera or phone, it’s beneficial for you to report the incident quickly and then contact a lawyer. They may elect to send your employer a preservation letter. 

Second, you are legally allowed to record without your employer knowing. However, that doesn’t mean your employer might not have internal policies against it; if they catch you recording, you could be fired for breaking that policy. 

Both Kansas and Missouri are one-party states, which means that you can record a conversation as long as you are a participant. One party must know that it is being recorded; you cannot put your phone down and walk away. 

“I love when I have audio recordings,” says Duggan. “Is it going to be admissible in court all the time? Sometimes yes, sometimes no, depending on if we can authenticate the recording. But it’s so good for me because then I go, okay, there’s no doubt in my mind for this.”

Illustration by Teddy Rosen

Another thing to consider is who else you’ve told, or who may have been a witness.

Duggan explains, “Texting people, especially if you think someone saw, and saying, ‘Did you see this?’ or texting a coworker when you see something, and saying, ‘I saw this happen.’ The employees who texted that they witnessed it could be great witnesses in a legal proceeding because it was fresh in their mind when they texted and did not have the pressure of lawyers or legal filings pressuring them to say one thing or another.” 

The employees who texted that they also experienced the behavior are called “me too” witnesses. 

Now, it’s more valuable than ever to communicate with coworkers and peers. 

Duggan says, “I would say, ‘Hey, my manager fill in the blank… has he ever done this to you?’ And you can talk about it to one another, but text or email each other, too. But once a lawsuit gets started, don’t text about it anymore.”  

Myth: I’ll be harmed somehow by retaliation.

Truth: You may. 

Retaliation in the form of firing, reducing hours, demoting, threats related to calling ICE, and more is illegal. It may still happen. 

However, retaliation claims can only hold water under the law if the original complaint was made and it was protected. In other words, an employee can’t normally claim retaliation against reporting a wrongdoing when the wrongdoing was never actually reported in the first place. 

“There are situations where people are going to get retaliated against. The law is not proactive with that. And so if it happens, you have resources later. But—when we don’t report, or don’t confront it, then we also contribute to the culture of silence that is a virus in the service industry,” says Duggan. 

Myth: It’s just part of the culture.

Truth: It is in some places, but it shouldn’t be and doesn’t have to be. 

“You can’t just say no, it’s not the norm. Because, yeah, it’s undeniable in too many places,” Duggan says. “And it usually is coming from the top down because sometimes managers are just such fucking losers. Like you got in this position of power and this is all you’re gonna do with it? Wield it over people?”

Culture is malleable. How far would you go to change it for a career you love? 

Myth: Getting a lawyer is too expensive.

Truth: Lawyer fees may not be what you expect.

When reporting abuses doesn’t work, it may be time to lawyer up. And Duggan gets right to the point: “Oh, that one is easy. You don’t have to spend any money.” 

Most employment lawyers take cases on a contingency basis, where they take on all the risk in the case by moving forward without you paying them. They even front case costs, like filing and depositions. Then, they take a percentage of what they’re able to financially recover for you, usually around 30-50%, plus case costs. 

“And attorneys are likely not taking cases that they are going to lose,” says Duggan.

Myth: A lawyer already told me that they wouldn’t take me as a client.

Truth: It might be worth another try somewhere else, and they may have said that because you truly don’t have a legal case.

Multiple factors are at play in this situation. 

Due to damage caps, businesses the size of most local restaurants, bars, and cafes are capped at paying out $50,000 in discrimination-related damages, such as claims under the MHRA and Title VII. This may turn some lawyers off from taking on your case because they don’t consider their part of the payout worthwhile. 

Also, what you’re reporting may not actually be illegal. 

It may be viewed as unethical, or even against the company’s own policies, but that doesn’t guarantee that it’s unlawful. However, Duggan recommends examining the behavior from a wider perspective. 

Illustration by Teddy Rosen

“When people tell me that, sometimes I try to dig a layer deeper to see if that policy or behavior is applied equally to people,” says Duggan. 

For example, is the employer or manager only monitoring the women employees’ personal social media, but not men’s? Are only Black employees asked to limit or check in before taking bathroom breaks? The act may not be illegal, but a discriminatory approach to the act may be illegal.

Therefore, it may be worthwhile to seek legal counsel again if the first lawyer turned you down, but it could also be true that what made you uncomfortable was not technically illegal.

Myth: I’m afraid that if I bring up the issue, my own actions will get brought up as a way to dismiss my claim.

Truth: It probably will.

“It’s valid. And that’s the dirty side of litigation. But it’s kind of that same argument of, ‘oh, just because a woman drinks alcohol doesn’t mean she can be raped,’” shares Duggan.

Maybe you uncomfortably laughed off a comment once or twice, and you’re afraid that it implied permission for the harm to continue. Maybe there were drugs present at the time of an incident. Duggan says that it can still be worth suing or pressing charges, as long as you’re upfront with your representation from the beginning.

Curing the culture of silence in the face of abuse cannot be accomplished by one lawsuit or a single perpetrator receiving justice. We got here by group effort, and it needs to be remedied by group effort. 

For further resources and worker organization efforts, we can look to how the Chicago Hospitality Accountability & Advocacy Database (CHAAD) has created public-facing support networks that offer those who are uncertain about next steps a roadmap towards protecting themselves, documenting abuses, and then taking action. 

Kansas City’s own Metropolitan Organization Countering Sexual Assault (MOCSA) has created the Sexual Assault Free Environment (SAFE) Training for restaurants and bars to give employees active bystander training to help prevent sexual violence and support survivors. 

The Missouri Workers Center is attempting to create a food service workers’ bill of rights. 

And sometimes, taking someone to court is the next step. 

Resources

File a complaint of discrimination with the U.S. Equal Employment Opportunity Commission. 

File a complaint of discrimination with the Missouri Department of Labor Commission on Human Rights (Missouri only).

Sexual Assault Free Environment (SAFE) Training for restaurants and bars from Metropolitan Organization Countering Sexual Assault (MOCSA).

Support for individuals who have experienced recent sexual assault, past sexual trauma, or childhood sexual abuse from Metropolitan Organization Countering Sexual Assault (MOCSA).

The Chicago Hospitality Accountability & Advocacy Database (CHAAD) Project is a BIPOC-and queer-led advocacy and mutual aid organization that offers general information helpful to Kansas City workers.