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Is it a gender discrimination if a restaurant only hires women server/waitress?

Pensacola, FL |

I am a male who was seeking an employment as a waiter with a certain restaurant. I was told they usually only hire women waitresses. They didn't come out flat and said they don't hire men waiters. But looking around there was no male waiters. Is this a gender discrimination?

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Attorney Answers 3


  1. It very well could be. The precise answer depends on many things. You should consult an attorney for a more detailed discussion regarding your rights.

    I am not your attorney, we do not have an attorney client relationship and nothing stated above should ever be construed as legal advice on which you may rely in your actions. If you would like to discuss further, please contact me. Jason Holbrook, Esq. Holbrook Law Jacksonville Office 4651 Salisbury Road Fourth Floor Jacksonville, FL 32256 (888) 908-7824 toll free (904) 253-7991 phone (904) 900-5504 fax Sarasota Office 1990 Main Street Suite 750 Sarasota, FL 34236 (888) 908-7824 toll free (941) 538-7878 phone (941) 538-7879 fax


  2. I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    This is an interesting question, and you are right to question sex-based hiring. As you must be aware, many restaurants (and other businesses) hire only men or only women for certain jogs. Of course it is illegal to make hiring decisions based on sex, other than in very rare situations that are not relevant to any restaurant I can imagine.

    The hard thing, of course, would be to prove the reason you were not hired was due to your sex. Your experience, personality, education, demeanor and more can be subjectively rated, and you can be refused a job because of any or all of these factors. I'm not saying it is impossible to prove sex-based hiring decisions, just that it's a steep uphill battle. You will probably need to work with an attorney to properly pursue such a claim.

    Please look at my guide to unlawful discrimination: http://www.avvo.com/legal-guides/ugc/what-is-unlawful-employment-discrimination--federal-law?published=true which should help you understand lawful and unlawful discrimination and how to enforce your rights.

    You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site www.nela.org. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

    I hope you can resolve your situation and wish you the best.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


  3. This is a VERY good question. Truth be told, even skilled and experienced employment attorneys do a double-take sometimes when they see a restaurant or bar with a workforce of servers that all look remarkably alike.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.