Pregnant server not on tap for bar owner (Legal View)

New owner tried to get popular employee to quit restaurant job: Tribunal
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 11/03/2014

A British Columbia restaurant must pay almost $10,000 for discriminating against one of its servers because she was pregnant, the B.C. Human Rights Tribunal has ruled.


Stephanie Lipp was employed as a server at Maverick’s Sports Lounge, a restaurant and bar in Vancouver. She was hired in October 2012 and was considered a good worker who was popular with customers.


In March 2013, Maverick’s was sold to a new owner. Lipp stopped being an employee of the old owner and started employment with the new owner immediately after the sale was complete.


The new owner wanted the business to be run more efficiently and decided to “reinvent how we were doing things,” as well as change the image of Maverick’s into a sports bar. Because business was slower during the day, day shift staff hours were cut.


The new owner met with the general manager to discuss the staffing changes. The general manager testified that when they reached Lipp’s name on the list, the owner placed his hands in front of his stomach in a gesture indicating she was pregnant, then directed the general manager to reduce her hours. It was believed Lipp was six months pregnant at the time.


Lipp’s hours went from four shifts per week to one. And in early April 2013, she heard that the general manager was telling others the new owner wanted to fire her because she was pregnant.


Over the next couple of months, Lipp found she had few to no shifts assigned. Eventually, the general manager told her the owner wanted to reduce her hours so she would quit. But when Lipp met with the owner to discuss this, he said he could give anyone any shifts he wanted and he denied trying to get her to quit.


On May 6, the owner gave Lipp a letter to sign that stated she would show up for her shifts. Lipp refused to sign as she had never missed or been late for any shifts before.


Lipp finally had a lawyer send a letter to the owner saying the working environment had been made unbearable for her and she considered herself to be constructively dismissed. Lipp sued for compensation for lost wages from her previous four-shifts-per-week schedule — $2,468 — plus $12,500 for injury to dignity damages from discrimination due to her pregnancy.


The owner denied trying to get Lipp to quit and said all staff had their hours cut. He also claimed Lipp wasn’t visibly pregnant when he took over Maverick’s and he didn’t know she was pregnant for awhile.


Owner’s story unlikely

The tribunal found it was unlikely the owner didn’t know Lipp was pregnant as she was six months along at the time and

everyone agreed she was showing. It also found the new owner was intent on improving the profitability of Maverick’s and likely felt Lipp’s pregnancy didn’t fit the image he wanted.


Arguments and comments overheard by staff made it clear the owner wasn’t comfortable having Lipp on staff while pregnant and wanted her gone, and this was borne out by her reduction in hours as Lipp’s hours were cut more than everyone else’s, said the tribunal.


It was also “improbable” that the owner wasn’t sure if Lipp was coming in the one time another server was called in to replace her, found the tribunal. This was another example of the “drastic and arbitrary reduction in the number of her scheduled shifts,” said the tribunal. This event confirmed for Lipp she wasn’t wanted because of her pregnancy.


“I find the reduction (of shifts) was in accordance with a plan or design to induce Ms. Lipp to quit because a pregnant server did not reflect the image that (the new owner) had in mind for his pub,” said the tribunal.


“Ms. Lipp found herself in ‘an inhospitable, discriminatory work environment… (such that she had) no reasonable option but to depart.’”


Maverick’s was unable to prove not being pregnant was a bona fide job requirement for its servers, so it was guilty of discrimination based on sex, found the tribunal.


It reduced the amount it considered appropriate for lost wages, since Lipp would have experienced a reduction in shifts even without discrimination, as all staff did.


Maverick’s was ordered to pay Lipp $2,000 for lost wages. Based on past decisions, the tribunal found $7,500 was an appropriate award for injury to dignity and self-respect, putting Maverick’s on the hook for $9,500 plus post-judgment interest.


For more information see:

• Lipp v. Maverick’s Sports Lounge, 2014 CarswellBC 2678 (B.C. Human Rights Trib.).


Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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