Hooters is one smart breastaurant. They’ve been able to maintain their “Hooters Girl” hiring practices through three lawsuits, including a class action, and an EEOC Commissioner’s Charge that had a settlement demand of over 22 million dollars. They are the gold standard for restaurants with sex based hiring practices. But for those without the resources of a billion-dollar company, Hooters should be a cautionary tale. Hiring practices based on protected characteristics are closely scrutinized by the EEOC and are only justifiable in certain, limited circumstances.
Sex based hiring is typically illegal under Title VII, but there is a narrowly tailored exception that allows discrimination when only members of a particular sex can perform the job. To succeed as a bona fide occupation qualification (BFOQ), the employer must show that failure to discriminate would undermine the essence of their business.
Hooters claims that men can’t be servers because the Hooters girl and the experience that she provides is “the essence of their business.” They liken their servers to entertainers; noting that they have to audition to be a Hooters Girl and, once hired, they “sing, dance and engage the customers to provide a unique Hooters experience.” Essentially, Hooters says that their customers go there for “vicarious sexual entertainment” first and the world famous burgers and wings second.
It’s important to note that no court has ever actually ruled that the Hooters Girl is a valid BFOQ. Hooters has settled every case on this issue, thus allowing them to maintain their hiring practices. But courts have ruled, in the airline industry, that a sex based hiring policy is not a valid BFOQ. (Diaz v. Pan Am) (Wilson v. Southwest Airlines).
As of 2016, Twin Peaks is in litigation on its identical, women only server policy. It will be interesting to see if this case will produce law and how it may affect all breastaurants going forward.
The takeaway here is that sex based BFOQs are extraordinarily difficult to prove and should almost never be relied upon to justify a discriminatory policy. Even a behemoth like Hooters knew that they’d face a hard battle in court, so unless you have the resources to pay your way out of these claims, avoid them at all costs.
DISCLAIMER: The information provided herein is general in nature and may not be applicable in all situations. It should not be acted upon without specific legal advice based on a particular situation.
Lexington Wolff Rykaczewski is a business employment attorney located in Houston, Texas. A former litigator, Lexi spent years defending companies from employee claims and knows how quickly an expensive lawsuit can throw a business into a tailspin. In 2016, Lexi started Lexington Wolff Law, PLLC, exclusively dedicated to helping employers navigate the extensive employment laws and prevent employee lawsuits. Lexi is admitted to practice law in Texas, Colorado, Pennsylvania and West Virginia. www.Lexingtonwolfflaw.com