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Many businesses feature beautiful female employees as part of their business plan and service offering. Examples include:

  • Hooter's waitresses
  • Sportclips stylists
  • A small chain of drive-thru smoothies in my area that feature bikini clad hotties with whom you can purchase a photo
  • Most all entertainment jobs

I am considering buying a franchise that falls into one of these categories and I just wanted to understand the legality of hiring only attractive women.

Is it sexual discrimination or just a legitimate hiring practice, since offering attractive female employees is part of the business strategy?

I'm in Maryland, USA in case that matters, but I'm looking for kind of a high level, general answer that might apply to anyone in the US.

  • 8
    FWIW, a family member worked at one of the Hooters type restaurants. Instead of calling them employees they were called models and instead of putting signs up saying "now hiring" they said "now casting". Apparently the act of hiring them as models allowed them to create certain requirements such as what they could do with their hair, how they painted their nails, weight management, and of course "selective hiring" – DasBeasto Jul 25 '16 at 12:49
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    @DasBeasto what the restaurant decides to call the employees isn't necessarily what a court/EEOC would find their primary job to be. If they are found to be primarily a server, then the fact that the restaurant calls them a model won't matter. – user3851 Jul 25 '16 at 14:30
  • @Dawn True I was just offering anecdotal evidence as to how they "get away with it", whether it is legally viable is another matter and from reading your answer it appears it may not be. – DasBeasto Jul 25 '16 at 14:49
  • I suspect some restaurants in Australia choose to only hire people of a certain ethnic appearance, even if they're not the same nationality as that of the restaurant. – Andrew Grimm Jul 26 '16 at 2:44
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You might find the legal concept you're looking for is that of a Bona Fide Occupational Qualification (BFOQ). I am probably glossing over some subtleties but my understanding is that you can discriminate against protected classes in some (all?) cases as long as you can show that it's related to a genuine qualification for the job. I don't know whether this specifically applies to places like Hooters and to gentlemen's clubs but it seems possible. It could also be that nobody has sued and gone to court before getting a settlement.

42

There is a good answer at the Skeptics StackExchange here. Its three most relevant references are:

Wilson v Southwest held that being attractive and female is not a BFOQ for being a flight attendant, even when the company marketed themselves using female sexuality:

sex does not become a BFOQ merely because an employer chooses to exploit female sexuality as a marketing tool or to better ensure profitability

Most scholars believe that the BFOQ exception would not apply to Hooters servers for the same reason. The job is serving food, and the sexualized nature of the service is just the manner in which they do the job, not a requirement of the primary job itself.

Hooters has never had a discrimination suit go to trial, however has been sued and settled out of court multiple times.

Employment discrimination based on gender has been allowed only in cases where the primary product being sold (not merely the manner of delivery of the primary product) requires a particular gender. One example would be sexual entertainment. This would include strip clubs, modelling agencies, Nevada brothels, etc.

I'll say it one other way.

Simply offering attractive female service as part of a business strategy is not enough to trigger a BFOQ exception.

To allow a BFOQ defence based on an employer's desired manner or means of achieving its primary business purpose would render the statute inoperative, and the BFOQ exception would "swallow the rule" Phillips v. Martin Marietta 400 U.S. 542 (1971). (This paragraph taken from here.)

  • Thanks, that's a very good answer and I appreciate it (+1). How does one reconcile it with the thousands of successful businesses like those I mentioned that systematically and successfully operate this way in spite of it? – Hack-R Jul 24 '16 at 14:34
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    According to this article, The strange loophole that lets Hooters hire only female servers, Hooter's was sued, and had to settle, and successfully argued BFOQ. – ChrisW Jul 24 '16 at 18:29
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    @ChrisW A settlement is not an award on the merits. Settlement is always voluntary. The merits of Hooters's BFOQ argument have never been decided in trial. That article wasn't clear in distinguishing between what Hooters claims and what has been held in court (or this case, not held in court). – user3851 Jul 24 '16 at 18:30
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    I'm pretty sure that BFOQ exceptions are not only for "sexual entertainment". Just two examples: I'm sure no theater or movie director was sued if they made a movie or show about Napoleon and for the lead role they were only looking to hire males who looked similar to Napoleon. Also, some religious institutions can also base their selecion on faith and/or gender, it would be ridiculous if a non-Catholic could apply to become Catholic priest, or a non-Jew could become a rabbi. There might be other examples, these were just two. – vsz Jul 25 '16 at 4:17
  • @vsz that is correct. I don't know what I was thinking by stating the limitation so strictly. – user3851 Jul 25 '16 at 4:55

protected by jimsug Jul 26 '16 at 12:54

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