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 paperN 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 1991settled, an EEOC investigation 1994/5dropped, a class action lawsuit stemming from that investigation 1993-1997H lost, and another one in 2009settled. 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.
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.
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.
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!