Hooters: How Did They Do That?

I was recently searching the internet (“Googling”) for an attorney in Roseville, California. However, Google directed me to some random sites and one was an article about a new Hooters lawsuit out in Michigan. Well the lawsuit is not that new… just new to me, as it was filed in June 2010.

Apparently, a Hooters (located in Roseville, Michigan) is being sued by an ex-employee for what appears to be workplace discrimination or retaliation. At this Hooters, it is alleged that waitresses were put on “weight probation” and encouraged to take Adderall or appetite suppressants to speed up weight loss. Interestingly, the plaintiff is a women, who stands 4’11” tall and weighs 115 pounds… So, she is not terribly big, but yet allegedly put on “weight probation”. And for some more jury appeal, she is a single mom. If you would like to read more about this lawsuit you can click here.

I do not mean to make this a employee/employer blog, but I found this lawsuit and Hooters’ hiring practices pretty interesting. And lets face it, some of the most interesting fact patterns come from employment litigation… a friend of mine had an employment case, where two women over the age of 55 got into a fist fight at work. That kind of stuff is crazy.

But this lawsuit got me thinking, how can Hooters hire only women to work as wait staff at their restaurants. We have laws that prevent employers from discriminating based on sex. Well apparently, Hooters found an exception to the rule.

As imagined, men have sued Hooters for discrimination based on sex. I have not found a case that actually went to trial, however, in the past they argued that being a woman waitress is a bona fide occupational qualification. The bona fide occupation qualification is a limited exception that allows an employer to discriminate against a certain class of people when no person that is part of that discriminated class could perform the work.

In essence, Hooters is arguing that only a woman can be a waitress at Hooters, because customers go to Hooters expecting to see attractive women waitresses. However, there are cases that state that customer preferences ordinarily will not justify gender as a bona fide occupational qualification. Perhaps that is why I cannot find a case that Hooters took to trial. Rather, all I can find are out of court settlements. If you can find a case that went to trial, let me know. I have only done cursory searches.

Also, looking at Wikipedia and the SmokingGun.com shows that the Hooters’ handbook has an interesting waiver to help prevent Hooters girls from bringing suit against Hooters. According to Wikipedia and SmokingGun.com female employees are required to “acknowledge and affirm” the following:

“1. My job duties require I wear the designated Hooters Girl uniform.
2. My job duties require that I interact with and entertain the customers.
3. The Hooters concept is based on female sex appeal and the work environment is one in which joking and entertaining conversations are commonplace.
4. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating, hostile, or unwelcome.”

So, there you have it. Whether, Hooters complies with the anti-discrimination litigation is up for serious debate. To date, there have been few challengers. It will be interesting to see if more people test Hooters in court.

One thought on “Hooters: How Did They Do That?

  1. If “female” for Hooters will be seen as a BFOQ then one should be able to open a themed restaurant for any protected group – subgroup. That is a German themed restaurant with only tall blond waitstaff etc. I can not see that within the definition of BFOQ this would work… for example in Diaz v. Pan Am female was not accepted as a BFOQ for flight attendant since the prime requirement of Pan Am was flying. Following up, when Hooters applies for a business permit, they file as a restaurant… not as “sex entertainment.” Therefore, serving food is the business and gender is NOT related. Please cite legal references if you find supportive or not cases.

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