Rusty Pelican Sued Over Scanty Uniforms : Waitress Asks $14 Million, Says She Had to Endure Sexual Harassment
For seafood lovers who have made them among the West’s most successful chain restaurants, Rusty Pelicans offer upscale dining in an atmosphere designed to summon visions of tropical elegance, with South Seas decor and waitresses in Hawaiian-print ensembles of bathing suits and short skirts.
For Kathy Boyer of Huntington Beach, however, five years of work as a waitress at the Rusty Pelican in Long Beach was a continuous skirmish, as she describes it, with overreaching men who, she said, reacted to her revealing outfit with demeaning and degrading advances.
Boyer filed suit this month in Orange County Superior Court alleging that her rights were violated by management’s “long pattern of direct discrimination against females . . . subjecting them to unprohibited sexual harassment.” The lawsuit seeks $14 million in damages based on allegations that executives of the Irvine-based, 19-restaurant chain flatly deny.
“After a bad night, you put it behind you, take your money,” Boyer, 31, said in a recent interview.
“But after the hundredth time I was grabbed, after the hundredth time someone touched my breast, I’d had enough.” Boyer’s lawsuit alleges that she repeatedly complained about the uniform--a one-strap print swimsuit with a short skirt and high heels--before conditions eventually became so intolerable that she refused to return to work as of March 18.
Legal experts familiar with employment discrimination and sexual harassment laws say Boyer’s lawsuit is one of a small but growing number nationwide in which women claim to have been sexually harassed as a result of the uniform required for their jobs.
“Women are being exposed to a situation which common sense tells you will result in some kind of an assault,’ said Lynn Hecht Schafran, director of Judicial Education for the National Organization for Women.
“You take a job because you need to eat,” Schafran said. “If you’re getting good tips, a lot of women will put up with a lot of garbage. It becomes a case of economic blackmail.”
In the first such case that went to trial, a U. S. District Court judge in New York ruled that a “a revealing and sexually provocative uniform” subjected a female lobby attendant in a Manhattan high-rise to sexual harassment.
The 1981 ruling held that her employer “made her acquiescence in sexual harassment by the public, and perhaps by building tenants, a prerequisite of her employment as a lobby attendant.” The employer, who fired the woman when she refused to wear the outfit, was found guilty of employment discrimination, in violation of the federal Civil Rights Act of 1964, and was ordered to pay back wages and benefits.
In Tewksbury, Mass., last year, a group of Holiday Inn cocktail waitresses agreed to settle a lawsuit after their employer withdrew a requirement that they wear revealing shorts, letting them wear slacks instead.
“My clients settled for money and a court order,” said Judith Ashton, a Boston attorney who represented the women.
In the wake of wide media coverage of what was dubbed the “hot pants case,” Ashton said, she has received dozens of calls from attorneys seeking information about the suit.
Management Policy
Lawyers familiar with sex-harassment law said a complaint has a greater chance of success if management has changed its policy to require more revealing uniforms.
If waitresses don’t mind such uniforms, “that’s fine,” Ashton said. “The point is whether my client’s rights are being violated.
“If you don’t mind your employer putting his arm around you and kissing you when you come to work in the morning, that’s fine, too, but you have a state and federal right not to have to put up with it,” she said.
The cocktail waitresses in the hot pants case found help in guidelines published by the federal Equal Employment Opportunity Commission describing the types of job conditions that amount to sexual harassment.
That aid will not be available to Boyer in her battle with the Rusty Pelican chain because her lawsuit is based solely on California law.
If Boyer had filed a federal claim and won, she could have collected actual damages, including back pay, but not punitive damages--those fixed by a jury to punish a wrongdoer for misconduct. By alleging violations of state employment discrimination laws, Boyer can seek punitive damages in addition to actual damages based on her claims of assault, battery and emotional distress.
May Open New Area
“If she prevails, you’re opening up a whole new potential area of litigation (in California), based on the requirement of wearing a sexually provocative uniform,” said Jeff Gonzalez, staff attorney with the Los Angeles office of the state Department of Fair Employment and Housing.
Gonzalez’s agency still is investigating a complaint that Boyer registered with the state agency before the civil suit was filed.
Boyer’s suit under state law involves “an open question,” according to Brian Hembacher, directing attorney of the department’s Los Angeles office. The department handled one similar complaint in 1983 when four waitresses at a Los Angeles restaurant protested a uniform change to “tight skirts and blouses” when there was no uniform change for male employes, Gonzalez said. It was settled before there was even an administrative hearing, however, when management agreed to let those four go back to the old uniforms, he said.
“Generally, the law says you have to keep your workplace discrimination-free,” Hembacher said. “If you had an acknowledged problem with customers harassing an employee of yours because of a uniform, you’d have some obligation.
“If cases like this come in in the future, we will definitely take them and investigate.”
Male Uniforms
In Rusty Pelican restaurants, male waiters wear short-sleeved, tropical print shirts that button in front over long Navy blue slacks.
For Boyer, the contrast with required attire for waitresses is overwhelming.
“It’s revealing, it’s racy, it’s unsafe, it invites problems,” she said.
“It’s a one-piece bathing suit that has only one strap,” Boyer said. Over the suit, waitresses wear “a very short skirt of flimsy material,” she said.
“It’s not the length that’s the problem, it’s what it reveals. It’s tied at the waist with a slit on one side. When you’re working it can open, and customers can see up the skirt. On the patio, when the wind is blowing, it shows what’s under the skirt.”
There are other dress requirements that Boyer finds objectionable: open-toed shoes with two-inch heels, sheer-to-the-waist panty hose and a ban on wearing anything under the panty hose.
The uniform is “extremely revealing” and “sexually teasing,” according to Boyer’s suit. It alleges that management forced her to lose pride, dignity, privacy, to invite sexual harassment and to be subjected to indignities, humiliation and insults.
Matter of Ambiance
Randy Howatt, president of Rusty Pelican Restaurants Inc., bristled at Boyer’s allegations.
“First of all, the uniform is not revealing. We want to project the image of dining in a tropical resort. That’s the kind of ambiance we try to create,” Howatt said.
The design is occasionally changed to stay current, Howatt said. Although Boyer complained that the uniform was modified in November to make it “even more revealing than its predecessor,” Howatt said the change “just upgraded color and fabric that paralleled the casual elegance we have in our restaurants.” The company was so pleased with the change that three different-colored versions of the waitress uniform were featured on the inside cover of the firm’s 1985 annual report.
Asked whether there were other complaints similar to Boyer’s, Howatt said: “We’ve been in business for 20 years, and you’re going to have some complaints. None has been found to have merit so far.”
Tim Aspel, the firm’s vice president for human resources, said that employees help design the uniforms--a claim that Boyer denied.
“Prospective employees are shown the type of uniform they are required to wear,” Aspel said. “They have a choice of whether they come to work for us.”
Fast-Growing Chain
Rusty Pelican Restaurants Inc., founded 18 years ago, posted the highest annual sales per unit--$3.68 million--of any chain restaurant in the United States in 1985. The chain has grown quickly of late, adding seven restaurants over a 14-month period during 1984 and 1985.
As a matter of policy, the chain tries to “provide a workplace free of unlawful and improper harassment,” Howatt said. Management employes are trained to deal quickly with complaints from any of the firm’s 700 food servers or 1,300 other employes, he said.
After five years with the restaurant, why did Boyer finally decide to sue?
“When I started I was younger. I thought, well, you know, I’ll try it,” she said.
Boyer, who is studying fine arts at a community college, said she needed the money, found it was a great place to work aside from the harassment and thought her complaints to management would be taken seriously.
“I was torn between the good and the bad for a long time,” she said. “On the one hand, it’s one of the best restaurant jobs you can get. On the other hand, it was absolutely outrageous. You’re selling your dignity.”
In response to management’s contention that there was a policy of trying to prevent harassment of employees, Boyer said, “When you’re in direct physical contact with employees and customer for hours half-dressed, what do you think is going to happen?”
“They can’t put the bait in front of customers’ noses and say they’re protecting me.”
