Category Archives: Transgender issues

WHY IS HOOTERS ALLOWED TO DISCRIMINATE BY HIRING ONLY WOMEN?

Ever walk into a restaurant or bar and see only women servers?  Or only male servers? Or only young servers?  Me too.  But is it legal to hire only women, or only men, or only young workers?  Read on for the answers — paying particular attention to the video at the end of the article, which highlights a significant exception to the general law against discrimination.

TITLE VII GOVERNS THE HIRING PRACTICES OF MOST EMPLOYERS

Title VII of the Civil Rights Act of 1964 prohibits employment practices that discriminate on the basis of race, color, religion, sex, or national origin.  Nevertheless, a discriminatory employment practice, such as the sex-based hiring practice hiring only women (or men), may pass legal muster if sex is a bona fide occupational qualification or “BFOQ.”

Title VII’s narrow exception provides:

“[I]t shall not be an unlawful employment practice for an employer to hire and employ employees … on the basis of … sex … where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”

The Supreme Court has emphasized that “[t]he BFOQ defense is written narrowly, and this Court has read it narrowly.”  The BFOQ defense applies to “special situations” where employment discrimination is based upon “objective, verifiable requirements” that “concern job-related skills and aptitudes.” An “occupational qualification” means a “qualification[ ] that affect[s] an employee’s ability to do the job.”

The BFOQ defense “may be invoked only when the essence of the business operation would be undermined by hiring individuals of both sexes.”  To justify discrimination under the BFOQ exception, an employer must show, by a preponderance of the evidence, that: (1) the “job qualification justifying the discrimination is reasonably necessary to the essence of its business”; and (2) that “sex is a legitimate proxy for determining” whether an employee has the necessary job qualifications.  In light of these demanding legal standards, BFOQs are few and far between.
BASED ON A 1997 SETTLEMENT, THE EEOC IS HANDS-OFF WHEN IT COMES TO HOOTERS’ HIRING PRACTICES

In 1997, Hooters agreed to pay $3.75 million to settle a lawsuit filed by men who were denied jobs by the restaurant chain, which is known for its voluptuous and scantily clad female bartenders and servers.

The settlement permitted Hooters to continue attracting customers with a female staff of Hooters Girls. But the chain also agreed to create other  jobs, like bartenders and hosts, that must be filled without regard to sex.

Hooters is still subject to attack that its practices are discriminatory against men.  But it appears that the EEOC will take no action given the 1997 settlement.  In any event, Hooters remains defiant against any attacks on its culture.  Its website reads:

“You may or may not know that Hooters has taken some flak over the years. We’ve endured our share of frivolous lawsuits, but none have put a dent in our ability to provide some good, old-fashioned fun in a casual atmosphere free from the intervention of outside parties with nefarious motives. It took awhile, but we finally worked the word “nefarious” into casual conversation. The point is, we’re proud of who we are. Yes, we have a pretty face. And sex appeal is part of our thing, but it’s not the only thing.”

OTHER EMPLOYERS, INCLUDING RESTAURANTS, AIRLINES, AND OTHER BUSINESSES CONTINUE TO LEARN HARD LESSONS

Hooters ability to hire only women for certain positions is very rare.  Much more common are the cases of Lawry’s Restaurants Inc. and Southwest Airlines.   Each had a practice of hiring only females (for server and flight attendant positions, respectively).  Each was sued and changed its practice.

The EEOC sued Lawry’s and later reported that the west coast steakhouse chain agreed to settle the lawsuit for more than one million dollars. The legal action arose from a complaint by one of the restaurant’s busboys. He claimed that he had been denied a higher-paying server position because of his gender. The EEOC investigation determined that Lawry had prohibited men from working as servers since 1938 and based its policy on tradition. Since Lawry’s instituted the policy over seventy years ago, female servers had dressed in costumes from the 1930s and 1940s. The EEOC determined that despite the policy’s roots in tradition and history, the practice of only hiring women for server positions adversely affected male employees and applicants on the basis of their sex.

Southwest readily conceded that its refusal to hire males was intentional.  Southwest contended, however, that the BFOQ exception to Title VII’s ban on sex discrimination justified its hiring only females for the public contact positions of flight attendant and ticket agent.

A court, however, rejected Southwest’s position:

“Southwest’s position knows no principled limit. Recognition of a sex BFOQ for Southwest’s public contact personnel based on the airline’s “love” campaign opens the door for other employers freely to discriminate by tacking on sex or sex appeal as a qualification for any public contact position where customers preferred employees of a particular sex.  In order not to undermine Congress’ purpose to prevent employers from “refusing to hire an individual based on stereotyped characterizations of the sexes,” a BFOQ for sex must be denied where sex is merely useful for attracting customers of the opposite sex, but where hiring both sexes will not alter or undermine the essential function of the employer’s business.

Rejecting a wider BFOQ for sex does not eliminate the commercial exploitation of sex appeal. It only requires, consistent with the purposes of Title VII, that employer’s exploit the attractiveness and allure of a sexually integrated workforce. Neither Southwest, nor the traveling public, will suffer from such a rule.

To recognize a BFOQ for jobs requiring multiple abilities, some sex-linked and some sex-neutral, the sex-linked aspects of the job must predominate.  An illustration of such dominance in sex cases is the exception recognized by the EEOC for authenticity and genuineness. In the example given, that of an actor or actress, the primary function of the position, its essence, is to fulfill the audience’s expectation and desire for a particular role, characterized by particular physical or emotional traits. Generally, a male could not supply the authenticity required to perform a female role. Similarly, in jobs where sex or vicarious sexual recreation is the primary service provided, e.g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee’s sex and the service provided are inseparable. Thus, being female has been deemed a BFOQ for the position of a Playboy Bunny, female sexuality being reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers.  One court has also suggested, without holding, that the authenticity exception would give rise to a BFOQ for Chinese nationality where necessary to maintain the authentic atmosphere of an ethnic Chinese restaurant.”

INDUSTRIES IN WHICH THERE ARE LEGITIMATE BFOQS UPON WHICH EMPLOYERS MAY RELY

In many industries, it is difficult to imagine any jobs that would qualify as BFOQs. However, the “unique context of prison employment,” is one area where courts have found sex-based classifications justified. In one case, the Court held that, in the context of a maximum-security facility “where violence is the order of the day” and sex offenders were interspersed with other prisoners, a female guard’s sex may “undermine her capacity to provide the security that is the essence of a correctional counselor’s responsibility.”

Another example of bona fide occupational qualifications are  mandatory retirement ages for bus drivers and airline pilots, for safety reasons. Further, in advertising, a manufacturer of men’s clothing may lawfully advertise for male models. Religious belief may also be considered a BFOQ; for example, a religious school may lawfully require that members of its faculty be members of that denomination, and may lawfully bar from employment anyone who is not a member.

While religion, sex, or national origin may be considered a bona fide occupational qualification in narrow contexts, race can never be a BFOQ. However, the First Amendment will override Title VII in artistic works where the race of the employee is integral to the story or artistic purpose.

Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. For example a Catholic college may lawfully require such positions as president, chaplain, and teaching faculty to be Catholics, but membership in the Catholic Church would generally not be considered a BFOQ for occupations such as secretarial and janitorial positions.

CONCLUSION

The Lawry’s, Southwest Airlines, and Ruby Tuesday case previously discussed by the HR Law Insider, represent cautionary tales for businesses.  Only in very limited circumstances can an employer justify a discriminatory hiring practice. The ability to market a company’s image through employees’ physical appearances is generally not going to satisfy the BFOQ defense.

Moving forward, cultural shifts are certain to add complexity to the BFOQ issue.  For example, in a recent case a transgender employee who was born physically female filed a discrimination lawsuit because the employer took the position that only a man was allowed to do his job: watching men urinate into plastic cups at a drug treatment center.

In short, employers should exercise extreme caution when making employment decisions that turn on an employee’s gender or other protected status.

For further information on this or other employment law topics, including hiring employees that fit your work culture, contact Art Bourque at Bourque Law Firm.

SPECIAL NOTE:  Title VII applies only to businesses with 15 or more employees.  Thus, the business highlighted in the video below was able to hire only men of a certain ethnic background:

THE CASE OF THE TRANSGENDER EMBALMER: GENDER IDENTITY AND SEXUAL ORIENTATION CASES ARE ANYTHING BUT DEAD

According to the EEOC,  coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions is “an enforcement priority.”  This enforcement priority is “consistent with positions the EEOC has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.”

True to its word, the EEOC is vigorously pursuing employers on a number of such cases.  In turn, the number of charges of discrimination and lawsuits regarding sexual orientation and identity is rapidly escalating.

This HR Law Insider edition helps employers understand and comply with emerging gender issues.  The two transgender cases discussed below — one involving a funeral home embalmer and the other a fireman, with each employee transitioning from male to female — provide an excellent guide for employers as to how to treat (or not to treat) transitioning employees or other employees with gender issues.

THE EEOC SUES ON BEHALF OF A TRANSGENDER EMBALMER AND WINS ROUND ONE IN COURT

The EEOC recently sued a funeral home on behalf of its embalmer asserting that the funeral home’s decision to fire the employee was motivated by sex-based considerations, in that the funeral home fired the employee because she is transgender, because of her transition from male to female, and because she did not conform to the defendant employer’s sex- or gender-based preferences, expectations, or stereotypes. The EEOC also asserted that the funeral home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.

Last month, a federal court decided that the case could go forward despite the funeral home’s argument that transgender status is not protected under Title VII:  “Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.

A TRANSITIONING FIREMAN IS ALSO PROTECTED UNDER TITLE VII 

The decision in the embalmer case relied heavily on a 2004 lawsuit involving a transgender fireman. In Smith v. City of Salem, plaintiff Jimmie Smith was born a male and had been employed by the Salem Fire Department for seven years without any negative incidents.  After being diagnosed with Gender Identity Disorder, Smith began expressing a more feminine appearance on a full-time basis, including while at work.  Smith’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.”  Smith then advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his treatment would eventually include “complete physical transformation from male to female.”

The news was not well-received by Smith’s employer. Smith’s superiors met to devise a plan to terminate Smith, which included requiring him to undergo three separate psychological evaluations in the hope that he would quit.

Smith lost before the lower court, but a federal court of appeals reversed and ruled in his favor:

“His complaint sets forth the conduct and mannerisms which, he alleges, did not conform with his employers’ and co-workers’ sex stereotypes of how a man should look and behave. Smith’s complaint states that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. The complaint states that his co-workers began commenting on his appearance and mannerisms as not being masculine enough; and that his supervisors at the Fire Department and other municipal agents knew about this allegedly unmasculine conduct and appearance. The complaint then describes a high-level meeting among Smith’s supervisors and other municipal officials regarding his employment. Defendants allegedly schemed to compel Smith’s resignation by forcing him to undergo multiple psychological evaluations of his gender non-conforming behavior.

The complaint makes clear that these meetings took place soon after Smith assumed a more feminine appearance and manner and after his conversation about this with Eastek. In addition, the complaint alleges that Smith was suspended for twenty-four hours for allegedly violating an unenacted municipal policy, and that the suspension was ordered in retaliation for his pursuing legal remedies after he had been informed about Defendants’ plan to intimidate him into resigning. In short, Smith claims that the discrimination he experienced was based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.”

The Smith court explained that “[h]aving alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.”

CONCLUSION

Whether in the macho world of firemen or the macabre world of embalmers, businesses must comply with Title VII. This includes treating transgender and similar employees in a non-discriminatory manner.  Failure to do so may give rise to an EEOC lawsuit; expect such lawsuits to accelerate and be pursued intensely by an EEOC, who has made the pursuit of such cases a “priority.”

It is difficult for many non-transgender people to understand how transgender individuals think and what they are going through.  For a brief glimpse of one person’s journey and perspective, here is a portion of Diane Sawyer’s interview of Bruce Jenner: