Could I apply for a job at Hooters with the intent of suing for a settlement when they don't hire me?

Question

The highest ranked answer to a previous question states that BFOQ exceptions (probably) would not be a sufficient argument for allowing Hooters to discriminate against a protected group. In fact the same answer points out that hooters has settled out of court numerous times when sued for discriminatory hiring practices.

Let's imagine a hypothetical situation where I decided that Hooter's settlement money would make me rich and so I conspired to set up a situation where I could sue so I could get a settlement. So, despite already having a good, higher paying, job I go and interview at Hooters tomorrow.

I meet every qualification to work in the service industry, and did while perusing my degree. I would reasonable be perfectly qualified to work at a job like hooters, except that I am a male and thus wouldn't be someone that a company that is dependent on exploiting female sexuality would likely want to hire.

Let's say I had already decided that on the unlikely situation I actually was offered the position I would decline it, since I like my current employment (and income) better then what I could get from Hooters. I would essentially would be applying for a job only to tempt them into discriminating against me so I could sue, with no real intent or desire to have the job.

For now presume there was some way I could prove that my lack of a job offer was due to my not being an attractive female. Would I be able to claim discrimination and pressure Hooters into a settlement in this sort of situation? Or would the fact that I was not interested in the job and the entire interview was purely an attempt to get a large settlement invalidate, or weaken, any claim I may have?

I'm looking for the US perspective here. Also, in case it's not obviously I'm not seriously planning to go interviewing at Hooters any time soon, I'm just curious what would happen if someone tried it.

Answer 1

If Hooters could prove that you never intended to accept the job, that would establish that you did not suffer any damages. You might also be charged with having abused the process of the court, and perhaps with perjury if you had said under oath that you did intend to take the job. If you already had a better-paying job, that would be evidence casting doubt on your intention to accept the Hooters job.

Also, if you had a better-paying job and kept it, it would be hard to establish that you were financially damaged by refusal to hire you at Hooters, even if the Judge and jury believed that you really wanted the job for some reason. Thus any settlement is not likely to be large.

If you admitted at the start of the case that you never intended to take the job, I suspect that the case would be summarily dismissed, and you might well be required to pay Hooters lawyers fees and other costs, and perhaps fined as well.

Answer 2

To file a lawsuit, you'd need to fulfill the proper BFOQ of the job offer that have been listed with the job offer. These can and will in some cases include gender or looks, especially in modeling. A more in-depth look I found in this paper^N as well as the Duke Journal of Gender Law & Policy Let's look at some examples that are all legal:

• A man is obviously not qualified to model women underwear in the same way and one would be hard pressed to prove that he is equally qualified.
• "Now looking for male models sized 6'7" or more" fully transmits the story what is wanted, shorter people or female models are not qualified as they lack the BFOQ that was chosen for artistic purposes.
• A religious school may deny applicants that don't believe in its religion, as that could be a BFOQ for teaching and representing staff.
• Firefighter applicants need to deliver fitness tests to show they are qualified to carry a person.
• Police applicants need to perform a fitness and health test to qualify for duty in some aspects.
• For hospital nurses, it can the fact that patients don't want to be treated by a male nurse can make being female a BFOQ.

In the past, there have been lawsuits that established that a feminine look can be a BFOQ for things like Playboy Bunnies¹.

And then there is the Hooters. I thank siop.org for the numbers here, and the article is worth reading. So, the story in short: Hooters has been target of lawsuits by male applicants that were denied in at least 1991^settled, an EEOC investigation 1994/5^dropped, a class action lawsuit stemming from that investigation 1993-1997^{H lost}, and another one in 2009^settled. A Hooters Spokesperson Shamsian stated in 2015:

The law allows the discrimination when it is necessary for the purpose of authenticity or genuineness as for an actor or fashion model. While we offer world famous wings and burgers, the essence of our business is the Hooters Girl and the experience she provides to our customers. Hooters Girls are entertainers. They audition for their roles and, once hired, they must maintain a glamorous appearance, and sing, dance and engage the customers to provide a unique Hooters experience.

Similarly, HotelExecutive.com in June 2009 had an article about Gender Discrimination, referencing Hooters:

Were the case [the 2009 one] to have proceeded to trial, Hooters would have needed to show it was not a typical restaurant. Rather, to prevail on a BFOQ defense, Hooters would have to show that its essential mission was not foodservice, but rather the entertainment of heterosexual men via “sexy” female servers, or something to that effect. Likewise, to the extent the restaurant could portray its Hooters Girls more like actresses playing a role rather than just waitresses, this argument could be effective. In sum, gender-specific hiring may be appropriate to preserve the authenticity of a thematic establishment like Hooters because the line between foodservice and showmanship is blurred.

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Knowing the legal history of Hooters, the company is more likely to settle if their legal team thinks they could lose the court fight. But if they even suspect you to have tried to scam them, you might be in for a very tough ride or a very low settlement. As David said:

If you admitted at the start of the case that you never intended to take the job, I suspect that the case would be summarily dismissed, and you might well be required to pay Hooters lawyers fees and other costs, and perhaps fined as well.

Courts hate frivolous lawsuits, and the EEOC does so too.

Cite/Notes

1: St. Cross v. Playboy Club, Appeal No. 773, Case No. CFS 22618-70 (New York Human Rights Appeal Board, 1971:

Although the issue is not stressed, it is to be noted in passing that the restriction to females only of the eligibility for employment as a Bunny constitutes a bona fide occupational qualification and as such is exempt from the provisions of section 296 of the Human Rights Law. This is somewhat similar to a juvenile part in a theatrical production.

N

The Paper has a faulty quote from a dictionary, claiming that a male DNA had the XX pair while a female was XY, it is exactly the opposite!