KTCHN restaurant and XL nightclub have been sued by servers for sexual orientation and gender discrimination and for failure to pay minimum and overtime wages and withholding tips.
KTCHN restaurant and XL Nightclub, located in New York’s OUT Hotel, caters to the LGBT community and is referred to as “gay-friendly” in the media. However, according to the lawsuit, management discriminated against servers Donald Shorter and James Stress, the only openly homosexual servers that outwardly presented as feminine at work by regularly wearing eye shadow, glitter eye liner, and nail polish. Shorter and Stress allege that management singled them out for their appearance and implemented a dress code policy that prohibited male employees from wearing nail polish and makeup, stating, “[t]he only acceptable time for gentlemen to wear make-up or nail polish will be Sunday Brunch.” Shorter and Stress complained about the policy and management allegedly humiliated, disparaged and reprimanded them for not following the policy. Shorter and Stress claim that the restaurant’s policy is a violation of the New York City Human Rights Law (“NYCHRL”) which prohibits discrimination based on sexual orientation and gender, and gender is defined by the NYCHRL to include “gender identity, self-image, appearance, behavior and expression.”
In regard to the wage violations, together with Shorter and Stress, two other servers allege that the restaurant unlawfully paid them the reduced tipped minimum wage when they worked in positions that did not receive tips, did not pay them overtime pay, and collected their credit card tips and distributed them at their own discretion and without regard for the established tip pool.
The lawsuit seeks to recover unpaid wages, misappropriated tips, and liquidated damages pursuant to the New York Labor Law and Fair Labor standards Act, and compensatory and punitive damages under the New York City Human Rights Law.