Can Gender Discriminate or Provocative Dress Requirements Ever be Appropriate for Your Employees?

By Dan Brown Partner, Sheppard Mullin Richter & Hampton LLP | January 14, 2010

What if a business such as a hotel or restaurant blatantly hired only young, attractive women to fill a particular position? What if that same business's staff was required to dress in revealing and sexually provocative outfits or else face termination? Sounds like clear-cut employment discrimination, right? Not necessarily. Hospitality establishments such as bars, restaurants, and casinos have successfully used exceptions to discrimination laws to capitalize on sex appeal while still remaining within the bounds of the law. This article examines "provocative" defenses to gender discrimination in the context of food and beverage service establishments.

Legalized Gender Discrimination?

On February 5, 2009, Nikolai Grushevski, a man who allegedly applied for and was denied a food server position at a Hooters restaurant in Corpus Christi, Texas, filed a gender discrimination class action lawsuit against the restaurant chain. Grushevski v. Texas Wings, Inc., C.A. No. 09-cv-00002 (S.D. Tex. 2009). Grushevski alleged that the on-duty manager told him that "Hooters, locally and nationally, would not hire males for waiter's positions," and Grushevski argued that he was "denied a waiter's position because of his gender in violation of Title VII." (Complaint, P 11). Grushevski is correct that that the exclusive hiring of women, on its face, violates Title VII's prohibition against sex discrimination. However, as explained below, the bona fide occupational qualification ("BFOQ") exception could apply and, if so, would allow Hooters to avoid the proscriptions of Title VII despite the apparently discriminatory practice.

The BFOQ defense provides that, even though clearly discriminatory, it is not an unlawful employment practice for an "employer to hire and employ employees . . . on the basis of his [or her] religion, sex, or national origin in those instances were religion, sex or national origin is . . . a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." [i] 42 U.S.C. SS 2000e-2(e)(1).

Thus, the BFOQ defense may apply where exclusion of a protected class (like men) is reasonably necessary to ensure authenticity or genuineness. For example, the Equal Employment Opportunity Commission concluded that sex is a BFOQ with respect to dramatic productions. 29 C.F.R. SS 1604.2. The integrity of a dramatic production would be comprised if a director was required to consider both sexes equally when casting a role written for one particular gender. The BFOQ defense has also been successfully used when discrimination was necessary to ensure safety. Thus, the exclusive hiring of male prison guards was upheld to maintain security in an environment characterized by "rampant violence." Dothard v. Rawlinson, 433 U.S. 321, 335 (1977).

A leading case considering the BFOQ defense as applied to alleged sex discrimination, Int'l Union v. Johnson Controls, Inc., 499 U.S. 197 (1991), interpreted the defense narrowly. Specifically, the United States Supreme Court held that an employer may properly use the BFOQ defense only if sex: (1) relates to the "essence" or "central mission" of the employer's business, and (2) is objectively and verifiably necessary to the employee's performance of his or her job tasks and responsibilities. Int'l Union, 499 U.S. at 201. Whether or not Hooters, or any establishment choosing to hire males or females exclusively, could successfully employ a BFOQ defense depends upon these two factors. The defense's applicability likely turns upon whether sex appeal is integral to the business's operations. For example, the BFOQ defense was rejected where an airline refused to hire male flight attendants based upon alleged customer preference, because the court found that the primary function of an airline is safe transportation and excluding men did not further that function. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971). On the other hand, the New York Human Rights Appeal Board found that being female was a BFOQ for the position of Playboy Bunny at the Playboy Club, finding the purpose of the job was to titillate and entice men and that female sexuality was reasonably necessary to achieve that purpose. See St. Cross v. Playboy Club, Appeal No. 773, Case No. CFS 22618-70 (New York Human Rights Appeal Board, 1971).

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