And so Nicolai Grushevski of Corpus Christi, Texas is off to court with a class action suit against restaurant chain Hooters of America, known for its buxom serving staff (complaint, PDF, courtesy CourthouseNews.com). Legal pressure on the winks-and-wings purveyor to hire male waitstaff is nothing new: see this post and this one on the long crusade to that effect by the federal Equal Employment Opportunity Commission.
31 Comments
In a free country nobody has to hire anybody.
But he’s “Hooter”-less. The place is called Hooters. Goes with the guys against “Ladies’ Night” when that brings the ladies in, and Mothers’ Day stuff, but by all means keep Fathers’ Day…
[…] via Overlawyered.com. […]
“Jack Wilson 01.13.09 at 1:37 pm
In a free country nobody has to hire anybody.”
I presume that you also think it is ok to refuse to hire blacks or asians on that basis? At “Asian Hooters?”
I would disagree. You are not permitted to discriminate against a protected class. The food servers at hooters are food servers not performers. Otherwise I could start a Mr. Smarties Broker service that only employs male brokers. I could use the same defense as hooters, saying “Well, they are called **Mr.** Smarties” so women need not apply. That wouldn’t fly as an excuse, neither does Hooters.
They should have hired him on the condition that he has to wear super-skin-tight shirts and short shorts like any other Hooters waitress. I’d be willing to wager that this guy applied because he knew he’d get rejected and could then sue for gender discrimination for an easy payday – see if he’s so eager to try it if it backfires and he gets to humiliate himself in public like that.
Scote: If I went to Mr. Smarties Broker I would expect that they be smart too.
If I were a regular Hooters patron, I would expect Hooters, not Hairy Man Boobs.
Scote,
No, in free nation they shouldn’t have to hire anyone they don’t want to hire for whatever reason they so desire. But we don’t live in a free nation, we have our rights of free association and contract abridged for groups of protected minorities. A real shame that we are forced to associate at the point of a gun.
“A real shame that we are forced to associate at the point of a gun.”
Yeah, a real shame that businesses aren’t free to discriminate on the basis of race, religion or gender. Pardon me if I don’t share your wistfulness for the bad old days.
Yeah, a real shame that businesses aren’t free to discriminate on the basis of race, religion or gender.
Actually, I think the argument is that it is a shame that we can’t hire on ability, rather than looking at a person’s race, gender or creed. The reason cases like this makes people mad is that for years we have heard that it is wrong to discriminate on the basis of sex, and yet when a company such as Hooters does just that, people make all sorts of excuses for it.
The bottom line is that a company should be able to either hire who they want based on ability, or that “discrimination” is wrong no matter what, no matter what reason, no matter what circumstances.
If it is wrong that a company does not hire a qualified person because they are a woman, then it is equally wrong if a person is not hired because they are a man. That is the rational Hooters used here. They didn’t hire the man because he is a man.
To be a truly non-discriminatory, the rules of employment must apply equally to all.
“Actually, I think the argument is that it is a shame that we can’t hire on ability, rather than looking at a person’s race, gender or creed.”
Um, actually, you can hire on ability rather than race. You are sort of supposed to. That’s kind of the point.
Scote, the “ability” Hooters looks for is the ability to be a reasonably attractive woman and carry trays of wings and beer without causing injury to patrons.
@gitcarver:
[T]hey didn’t hire the man because he is a man.
They didn’t hire him because he isn’t an attractive woman. If a business is selling sex appeal (because the wings and beer at Hooters are probably awful), then it makes no sense to dictate to them whose sensibilities they must cater to.
“because the wings and beer at Hooters are probably awful”
Actually, hooters has pretty good wings. That said, no one goes there for the wings.
Quoting Nicky Santoro: “here’s a guy just begging to be made an example of.”
Um, actually, you can hire on ability rather than race. You are sort of supposed to. That’s kind of the point.
I guess I missed the death of quotas in all the papers and on the news. Did the NFL suspend the Rooney Rule too?
(That sounds so much worse than I am trying to sound. Please do not take what I am saying as offensive or paternalistic. “Sarcasm” is more what I am going for here.)
I understand what you are saying, but the problem is that companies hire what they feel is the most qualified applicant and then get sued for discrimination.
@Matt:
They didn’t hire him because he isn’t an attractive woman. If a business is selling sex appeal (because the wings and beer at Hooters are probably awful), then it makes no sense to dictate to them whose sensibilities they must cater to.
So if there was a female that was eminently more qualified for the , but wasn’t as “attractive” or as “young” as Hooters wants, they have the right to hire a lesser qualified buxom bimbo? I thought this was about ability?
In fact, take a look at the Hooter’s site under “employment.” Here are the requirements as listed:
“You must be at least 17 years old for hourly employment opportunities with Hooters of America, Inc. and at least 18 or 21 for the Hooters Girl position depending on local alcohol service laws. ”
(no mention here of only being a female.)
and ….
” There is no set requirement in order to be a nearly World Famous Hooters Girl! We look for the All-American Cheerleader / Surfer-Girl-Next-Door image to fill our restaurants. In other words…Very bubbly, outgoing personalities!”
We can sit here and say what Hooters is selling, but when I see “no set requirement,” I think “no requirement to be female.” I realize that some are going to latch onto “Hooters Girl,” but is that really a requirement? Can’t a male be an “All-American Cheerleader” with a “very bubbly, outgoing personality?”
Hooters also says that as part of their staff, “you’ll know how to develop and move up in the organization.” I would argue that being able to get a foot in the door as a waitress gives the waitresses a benefit that a male cannot get as Hooters promotes hiring from within.
My only point is the hypocrisy of this. Everyday there are suits and claims of discrimination because a man was hired in place of a woman. In this instance, when a woman is hired in place of a man, everyone makes excuses for the company.
Its the double standard I object to.
Does the NFL, NBA, MLB, NHL specify males? Although once I called the Chicago Bears and asked for Personnel (with my very female sounding voice) and I was asked if I wanted player personnel or regular personnel…
Being a Hooter’s *Girl* is like being a player.
Hooters hires men, just not in that particular position.
I think the job title, “Hooter Girl”, is pretty unambiguous about the gender of intended applicants. Most guys don’t want to go around being called a girl, after all.
The job is not advertised as “All American Cheerleader”, that is only the desired type of girl being sought. Nor is the position advertised as “waiter” or “service attendant”. It’s “Hooters Girl”, an identifiable entity in this Westernized World, even in countries without Hooters.
Yeah, a real shame that businesses aren’t free to discriminate on the basis of race, religion or gender. Pardon me if I don’t share your wistfulness for the bad old days.
Perhaps I am mistaken, but I thought in the “bad old days,” businesses were required to discriminate on the basis of race.
No preview button?
Being allowed to discriminate, i.e., using your property as you see fit, is not the same thing as wishing for the old days of the racist democratic South, but is a recognition that the cost to the society of the so-called remedial protections for “protected classes” are greater than the harm caused. If somebody is misguided enought to refuse service to blacks, homosexuals, Jews, Christians, Asians, Hispanic, etc. the market will determine if that is a societal harm. Freedom does not require equality, just your right to act.
I like most of the socialist so indignant about discrimination, would not want to give my patronage to establishments that refuse service to blacks, homosexuals, Jews, Christians, Asians, Hispanic, etc. ; but if I wanted to go to Hooters or an Irish Pub that only hired Irish men and woman, than that is my right and it is their right to offer that environment (and allow or disallow me to smoke a pipe, while drinking my Guinness).
That being said, that is not the “law” and unlike the Mr. Obama’s friends Ayers and Dohrn, I follow the letter and spirit of the law.
Does the NFL, NBA, MLB, NHL specify males?
No. (See “Ann Meyers.”) In fact, women are allowed to play in those leagues based on their ability. Contrasting that is the PGA where women are allowed to play and the LPGA where men are excluded from playing.
I think the job title, “Hooter Girl”, is pretty unambiguous about the gender of intended applicants.
Okay, assuming that to be true, then the position “fireman and policeman should be basis enough to exclude all women from attaining those positions. After all, if the position itself defines the gender what works for one must work for all then “man” and “girl” must exclude other genders.
The job is not advertised as “All American Cheerleader”, that is only the desired type of girl being sought.
Yet it does not say that. It says that there are no “set requirements.” In that you and others are saying that being a “girl” (try using that term to describe a female employee in the business world and see how that goes) is a requirement I am not sure whether to believe Hooters’ own wording or our interpretation.
One may make employment choices on the basis of sex if that choice is a bona fide occupational qualification (BFOQ).
http://law.justia.com/us/cfr/title29/29-4.1.4.1.5.0.21.2.html
Whether or not having a young attractive woman server at Hooters meets the criteria for a BFOQ in the law or regulations has yet to be determined. Hooters America Inc., the franchisor may have an out in this lawsuit if the individual hiring decisions are left up to the individual franchisees.
On a final note, there is no such thing as a BFOQ exception with respect to race. So for example, if a black actor applied for the job of playing Hamlet, it would be illegal to turn him down because he was black and Hamlet was not. On the other hand, if an actress applied for the job, it would be legal to turn her down on a BFOQ basis.
VMS is right about the BFOQ, although it is pretty clear from the Stewardess cases in the ’70s and early ’80s that gender is not a BFOQ for a “Hooters Girl.”
Most airlines only hired female flight attendants, and Southwest in particular maintained and marketed a feminized and sexualized image of its stewardesses and ticket agents. Courts held that unless sex or sex appeal is the “dominant service provided” (e.g., a strip club), there is no BFOQ for gender.
Also, the EEOC crusade against Hooters that Walter mentions is an impressive example of a federal agency being defeated by a marketing campaign. The EEOC dropped its case after a public ad campaign featuring Vince, the Hooters Guy. (Of course, Hooters still settled with the individual claimants.)
gitarcarver: That’s why the terms ‘policeman’ and ‘fireman’ are no longer those used officially for those jobs. You are now a ‘law enforcement officer’ or ‘person who puts out fires for the fire department’ or some such.
We have ‘postal carriers’, not ‘mailmen’ these days, purely to avoid gender bias in terminology.
Kinda sux for the websters and spinsters, not to mention baxters.
so that I understand…to not hire somenone based on race, gender, skin color (ooops ethnicity), aesthetics (or lack thereof) is discrimination but as long as you announce your desire to discriminate (i.e. only bi-lingual candidates will be considered or African American females are encouraged to apply meaning that is the only “group “we will even considering hiring) is not discrimination ?? sounds like a free country to me!
There is a laboratory near Texas A&M that pays $50/visit to sperm donors. They have a rigorous screening (detailed medical history, and then the sperm samples need to meet standards for low mutation rate, high viability, high cell count). Presumably rejected men could sue under ADA? Likewise, a woman could sue for gender discrimination.
NIH in Maryland conducts a lot of clinical trials, and they pay volunteers. Should I be able to sue because I don’t meet their inclusion criteria?
From the complaint : “Hooter’s is a restaurant chain that operates in almost 45 states, …”
Do lawyers actually get paid to write this stuff? How does one operate in “almost” 45 states? Is this some kind of legal doublespeak that we lay people are not privy to? Just wondering.
“Is this some kind of legal doublespeak that we lay people are not privy to? Just wondering.”
LOL…yes and we have secret handshakes too.
In response to post #3, you are correct in that you cannot discriminate against a protected class; however, males are not a protected class.
The guy just wants attention and to be the one that took Hooters on, which is fine, but he won’t win, and he shouldn’t win the case.
Scote, people who hire people are constantly discriminating. Have you ever seen a job application or engaged in a job interview? Then you have been a victim of ,or perpetrator of, or participant in discrimination. For some reason, liberals think there is some grievous harm done by discriminating against certain characteristics.
Under liberty, the ‘at will’ principle rules. This includes hiring or not hiring as you see fit.
The fun will really start after Hooters is forced to hire a male waitress, then is subsequently ordered to require tables to accept him as their server for the day.
Patrons will be able to clamor for a ‘genuine’ Hooter’s girl., but it would be illegal discrimination for the restaurant to acquiesce to their demands.
Subsequently, we can enjoy the lawsuit filed because the hooter’s dude is making less in tips for some invidious reason.
I’ll be interested to see just how female Hooter’s Girls will sue the hooter’s dude for bringing down their shared tip income, since it is easily predictable that 20-something male patrons will give lower tips to the hairy armed wait staff.
[…] The world would be a better place if the EEOC spent more time rooting out discrimination in its own ranks, and less time trying to ban offensive words protected by the First Amendment, and less time suing the Salvation Army for requiring employees to speak English (a lawsuit far more harmful than the EEOC’s silly lawsuit against Hooters). […]