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Maskual Harassment What Restaurant Owners Need to Know

by | Mar 16, 2021 | Employment Law


By Joseph Wapelhorst

It’s no secret that the restaurant industry has perhaps been hit hardest by the COVID pandemic. These businesses are closing, employees are being let go while those who remain work longer hours. The challenges posed by the pandemic are a complex, tangled web of frustrating circumstances, but there are some changes to the livelihoods of servers that require a closer look and immediate attention.

Restaurants losing business means tips for tipped workers are down dramatically. With hours shortened or restaurants temporarily shuttered, with a focus on pick ups and deliveries, the loss of tips is more critical than ever.

The wait staff workers who are still employed find themselves with greater responsibilities and risks as restaurants have shifted to delivery and takeout, or limited indoor and outdoor operations.    Unmasked diners, delivery to unknown addresses and being responsible for constant sanitation forces are just some of them.  Perhaps most upsetting is what is coming to be known as “maskual harassment”.

Due to the politicization of the wearing of masks, restaurant workers have been forced to face down customers who have found new and dangerous ways to harass them, particularly women. Some have inappropriately begun to ask servers to lower their masks and show their full faces in order to earn their tip. This sexual harassment is not only insulting but puts the server in aa terrible position of balancing the health risk of demasking and the economic risk of a lost tip. Other patrons have refused to wear masks or do so properly, forcing underpaid restaurant workers to act as public policy enforcers while their pay still depends on the customer’s satisfaction. How can these workers toe the line between agreeable and sternly enforcing public health guidelines?

The NJ Law Against Discrimination provides protection for these employees in these circumstances. The law protects against discrimination based on “perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, and other protected characteristics” and thus offers a path to protection for those who are subject to “maskual harassment” of a sexual nature. The law specifically applies in places of “public accommodation” including restaurants. Also, the law places the duty on employers to protect employees when discrimination or bias based harassment occurs in restaurants.

With maskual harassment on the rise, the NJLAD also provides protection from quid pro quo sexual harassment which can be defined as situations in which sexual harassment is forced on workers as a condition of payment, employment, or “favorable treatment” such as tipping. This is precisely the sort of legal safety net servers need as they stare down the barrel of a customer who seeks to force them into an uncomfortable or even unsafe situation for their tip.

There is also another law called the NJ Conscientious Employee Protection Act which protects employees from employers who seek to punish those employees “who disclose, object to, or refuse to participate in certain actions that the employee reasonably believes to be either illegal or in violation of public policy.” This “whistleblower” law provides a defense for those workers who refuse to sacrifice their own safety or insist on the safety of other patrons and coworkers by enforcing public health policy during the pandemic.

How should a restaurant owner or manager someone protect workers under these laws?  Just as policies on smoking and dress codes are communicated via signage and websites, food service employers need to take it upon themselves to make it clear to customers  that these laws protecting employees not only exist but will be enforced. They must remind customers that servers’ and waitstaff’s requests to adhere to state health guidelines must be followed. If necessary, minimum tips might be provided by owners and managers for subminimum wage workers to protect their pay or to show that harassment will not be tolerated.

By insisting on protecting employees and assuring them that they face no retribution from their superiors in doing what is safe and professional, workers can be more comfortable and assertive with patrons. This minimizes the risk of employee claims. Owners should also be ready and willing to support their staff in encounters which may pose a health risk, or which are blatant harassment. By publicly communicating the protections they commit to providing for their employees, restaurants are making not just necessary but smart decisions. It’s just good business.

Staff Writer Joey Wapelhorst is a recent graduate of Fordham University where he studied Political Science and Accounting with a focus on Constitutional Law and American Government. He has worked on multiple New Jersey Congressional campaigns and in NJ’s 38th Legislative District Office. He is currently choosing where to attend law school in the Fall.

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