Really, I Come Here for The Food: Sex as a BFOQ for Restaurant Servers

Michael Aamodt

I recently saw that a discrimination lawsuit had been filed involving a defense that sex was a bona fide occupational qualification (BFOQ) for restaurant servers (Rafael Ortiz v. DMD Florida Restaurant Group, 2016).  I immediately thought of the Hooters cases that are part of the I-O lore and thought that this might be a good time to review these restaurant BFOQ cases. This discussion is limited to restaurant cases for two reasons: (a) They are the most interesting, and (b) a review of the other cases (e.g., sex as a BFOQ for prison guards¹ or home health attendants) would far exceed the TIP space limitations and probably the readers’ attention span as well.²  

Before I get into the case review, however, I want to review the definition of a BFOQ and provide additional context around the BFOQ defense.

The BFOQ Defense

In the United States, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, sex, color, religion, and national origin. The BFOQ exception in Title VII states that discrimination is illegal except, “in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” The courts have opined that an employer using the BFOQ defense must demonstrate that it “had reasonable cause to believe that all (class members) would be unable to perform the job safely and efficiently or that it was impossible or highly impractical to consider the qualifications of each” (Cavico & Mujtaba, 2016).

Before describing the restaurant cases, it is important to understand the difference between a BFOQ case and the “typical” sex discrimination case.  In a BFOQ case,³ the defendant does not deny that it only hires women (or men) for a particular position but instead argues that only members of a particular sex can perform the job.  Such cases must be distinguished from those in which the restaurant doesn’t want to hire applicants of a particular sex (e.g., EEOC v. Jillian’s, 2003; EEOC v. Palm Management Corp., 2003; EEOC v. Parker Palm Springs Hotel, 2007; EEOC v. Razzoo’s, 2008).

EEOC v. Joe’s Stone Crab, Inc. (2002) provides an excellent example of a case that occasionally is incorrectly cited as a BFOQ case.  In 1991, Joe’s Stone Crab was a fourth-generation, family-owned seafood restaurant in Miami. From 1950 until the EEOC filed its sex discrimination complaint in 1991, the server positions were almost exclusively filled by men. Following the EEOC’s complaint, Joe’s hired 19 female servers (out of 88) from 1991 to 1995.  This is not a BFOQ case because Joe’s never argued that women could not do the job, but rather Joe’s historically preferred male servers to “emulate Old World traditions.” In fact, the EEOC’s allegation was that “Joe’s reputation for hiring only male food servers resulted in almost no women actually applying for food server positions at Joe’s.”⁴ 

Understanding the nuanced nature of the BFOQ defense, let’s now turn to the restaurant case review. I will begin with the case that sparked my renewed interest in the topic (Rafael Ortiz v. DMD Florida Restaurant Group, 2016), then turn to other notable cases on the topic.⁵

The Current Case

On June 29, 2016, a lawsuit was filed against a Twin Peaks Restaurant in Davie, Florida (Rafael Ortiz v. DMD Florida Restaurant Group, 2016).  For those unfamiliar with the Twin Peaks chain, it is a “breastaraunt” (a term with which I was unfamiliar prior to writing this article) that is apparently similar to a Hooters although its specialty is “comfort food” rather than wings and its theme is “alpine” rather than owls.

In the suit, Rafael Ortiz,⁶ a male applicant who applied on July 30, 2015, for a job as a restaurant server, was denied employment because he was a male. The server positions are referred to as “Twin Peak Girls.” The job postings for the position indicated that men would not be hired for the server positions, and the manager on duty said that the, “positions are reserved strictly for females.” 

The Twin Peaks website states:

Here at Twin Peaks, we offer everything you crave and more. Hearty made-from-scratch comfort food, draft beer served at a teeth-chattering 29 degrees and all the best sports in town shown on high definition flat screens. All of this is served by our friendly and attentive Twin Peaks Girls, offering their signature “Girl Next Door” charisma and playful personalities to ensure that your adventure starts at the Peaks.

Be a Twin Peaks Girl! The Twin Peaks Girls are the hosts of the party bringing the Twin Peaks experience to life while serving high quality eats and drinks. They have a “girl next door” personality, offering a playful and energetic hospitality to our guests. Twin Peaks Girls enjoy flexible scheduling, great tips, modeling and travel opportunities. If you think you can work it, click here to find the nearest location to audition! Grab your favorite outfit, glam up your hair and make-up, and visit us today.

As mentioned previously, this case is reminiscent of the Hooters cases from the 1990s as well as the more recent Lawry’s case.  These cases center on the question of whether sex can be a BFOQ for positions such as restaurant servers. The courts have previously ruled that sex is not a BFOQ for flight attendants (Diaz v. Pan American Airways, 1971; Wilson v. Southwest Airlines, 1981). Interestingly, none of the famous restaurant server cases was ever decided by a judge or jury: All were settled prior to trial.⁷

The restaurant cases have three similar sets of facts: 

• The restaurants employed only women in the server positions but hired both men and women into positions such as bartender and cook.
• Servers made the most money.
• The restaurants did not deny that they only hired women for server positions but argued that the women-only requirement was part of the restaurant theme in which the servers wore themed uniforms or costumes.

St. Cross v. Playboy Club (1971)

The earliest restaurant BFOQ case is probably, St. Cross v. Playboy Club (1971). This is an interesting case in that the plaintiff, Margarita St. Cross, was a female Playboy bunny who was fired because she did not meet the employer’s weight standards.  On December 17, 1971, the New York Human Rights Appeal Board ruled that the firing was legal, and although this was not a hiring case, the board for some reason opined that, “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."

Although not related to this article, I think TIP readers will find the Playboy evaluation scale to be of interest⁸:

1. A flawless beauty (face, figure, and grooming)
2. An exceptionally beautiful girl
3. Marginal (is aging or has developed a correctable appearance problem)
4. Has lost Bunny image (either through aging or an uncorrectable appearance problem)

Guardian Capital Corporation (1972)

On July 18, 1972, a Ramada Inn in Binghamton, NY fired the male servers in its bar and replaced them with women in sexy outfits. Two of the fired waiters, John Plebani and Gregory Wilson, filed separate complaints with the NY State Division of Human Rights alleging sex discrimination.  Ramada Inn countered with the sex as a BFOQ defense which neither the division nor the Human Rights Appeal Board found to be valid.

What makes the Ramada Inn cases interesting is that the appellate court, although upholding the division’s decisions in both the Plebani and Wilson cases, questioned how the division could rule one way in the Playboy Club case (i.e. sex can be a BFOQ) and another way in the Ramada Inn case (i.e. sex cannot be a BFOQ). The court stated, “It would seem that the division’s position in this case involving a small entrepreneur in Binghamton, New York differs widely from their stated thinking in the Playboy Club case.  Can it be that immense wealth and great influence make a difference?”

EEOC v. Hooters (1989, 1991, 1993, 1994)

This is a four-act story.

Act I (1989). In March, 1989, Mike Albergo was turned down for a job as a bartender at a Hooters restaurant located in Port Richey, FL.  He filed a complaint with the EEOC who agreed in 1990 that he was not hired because he was male. In a letter summarizing EEOC’s findings, EEOC district director Federico Costales wrote, “Hooters fails to hire males as bartenders as a class.  The evidence establishes a violation of Title VII” (Hayes, 1990).

Albergo eventually filed a lawsuit seeking $125,000. The Hooters co-owner, Ed Droste, did not deny that Hooters only hired female servers and bartenders because the “cheerleader, surfer girl” is an important component to the restaurant’s image. He further stated that, “We believe we’re on firm legal ground here …We’re staffed the same way as a play or a Broadway musical” (Restaurant Chain Accused, 1991).

Albergo fancied himself as a gender pioneer, stating, “In Florida, the male species only get the pig jobs back in the kitchen because the girls bring in the business.  I’m like the first girl that joined the Army” (Hayes, 1990).  The lawsuit was settled out of court late in 1991 (Rodricks, 1995).

Act II (1991). On October 22, 1991, EEOC filed a Commissioner’s Charge⁹ alleging that Hooters only hired women to be “Hooters Girls.”  The company affirmed that this was their policy and unabashedly argued that:

• "[T]he element of female sex appeal is prevalent in the restaurants, and the company believes the Hooters Girl is as socially acceptable as a Dallas Cowboy cheerleader, Sports Illustrated swimsuit model, or a Radio City Rockette." 
• The primary function of Hooters Girls was, “providing vicarious sexual recreation” (Bovard, 1995).
• “The business of Hooters is predominantly the provision of entertainment, diversion, and amusement based on the sex appeal of the Hooters Girls" (Bovard, 1995)

In February, 1995, the EEOC asked Hooters to establish a $10 million settlement fund to be distributed among the 1,423 male applicants already identified by EEOC as having been denied jobs as servers, accept unlimited liability for any additional men who come forward as victims, and abandon their female-only Hooters Girl policy (Bovard, 1995). When Hooters did not agree with this offer, the EEOC countered with a $22,171,421 limited liability settlement offer.

On February 15, 1995, Hooters took on the EEOC in an unprecedented public relations campaign that eventually pressured EEOC into dropping the case. The $1 million campaign involved media ads featuring a hairy “Hooters Guy,”¹⁰ a billboard campaign featuring the slogan, “Washington, get a grip,” and an appeal to Hooters customers to write to congress. To help convince Congress, Hooters provided postcards and orange Frisbees with a “Hooters Guy” sticker that customers could send to their Congressional representative. According to a 1995 article in the Washington Post, “tens of thousands” of these Frisbees were sent to Congress, many of which contained crude or threatening language (Grimsley, 1995). The PR campaign had at least some effect as Illinois Congressman, Harris W. Fawell, publically chastised the agency and asked the EEOC to justify its investigation.¹¹

On November 15, 1995, The PR campaign heated up with a 100 Hooters Girl march on Washington, DC in which marchers held banners with slogans such as, “100 Angry Women and it’s not PMS” and “Men as Hooters Guys – What a Drag” (Horovitz, 2013). The campaign also included full-page ads in both The Washington Post and USA Today.

In November 21, 1995, EEOC responded to the PR campaign with the following press release:

EEOC COMMENTS ON HOOTERS' PRESS OFFENSIVE

WASHINGTON -- Any legally sophisticated employer such as Hooters is well aware that the EEOC is prohibited by law from publicly discussing any pending investigation. As a result, we can neither confirm nor deny the existence of an ongoing investigation against Hooters or any other employer. EEOC, therefore, cannot respond to the public relations offensive recently initiated by Hooters.

We feel it important to point out, however, that a private class action lawsuit -- in which EEOC is not a party -- was brought in December 1994 by individual men who believe that they were discriminated against by Hooters' hiring practices. The case is pending in federal court in the Northern District of Illinois (Chicago).

Given the pendency of this private action, we fail to understand what Hooters is seeking to accomplish through this expensive, well-orchestrated campaign other than to intimidate a federal law enforcement agency and, more importantly, individuals whose rights may have been illegally violated.

As one would imagine, the media had a field day with this case.  Some media attempts at humor included:

• “It’s not that the EEOC doesn’t give a hoot about the restaurant…”
• “Equal employment action’s a hoot.”
• “In September 1994, after sampling an unknown number of happy hours and
  Buffalo wings, the EEOC decreed that the business of Hooters was food, and that "no physical trait unique to women is required to serve food and drink to customers in a restaurant."
• “Hooters’ Owners Cleaving to a Defense That’s a Bust”

On March 6, 1996, the EEOC formally ended its investigation in a letter written by EEOC Chairman Gilbert Casellas to Congressman Fawell in which Casellas stated, “Denying any American a job simply because of his or her sex is a serious issue which should be taken seriously.  The particular factual issues raised by Hooters do not transform this into a frivolous case or a subject for locker-room humor.” But, “it is wiser for the EEOC to devote its scarce litigation resources to other cases.”

Act III (1993). While the EEOC Commissioner’s investigation was occurring, three additional complaints were filed with the EEOC: One by Savino Latuga and David Gonzales on February 12, 1993 against an Orland Park, IL Hooters; a second by John Ginter and Patrick Salisbury on April 8, 1994 against a Downers Grove, IL Hooters; and a third in by four men in Maryland. After a complicated set of legal events, these suits were subsequently combined and a private class action lawsuit was filed on January 25, 1995 (Latuga v. Hooters, 1995). On March 29, 1996, Magistrate Judge W. Thomas Rosemond certified the class to include all men who applied to front-of-the-house positions to any Hooters restaurant since April 19, 1992. 

Hooters eventually settled the case and a consent decree was entered on November 25, 1997 for $3.75 million. Although such an amount would seem to have been a defeat for Hooters, the terms of the settlement allowed Hooters to continue to only hire women for the server positions. As part of the settlement, Hooters agreed to create three gender neutral positions.

Act IV (2009). A similar lawsuit was filed in Corpus Christi, Texas.  In this case (Grushevski v. Texas Wings Inc., 2009), Nikolai Grushevski alleged that in May of 2008, he applied for a job as a waiter at the local Hooters and was told by the restaurant manager that Hooters would not hire men for waiter positions. Again, Hooters did not deny its policy. In 2009, a confidential settlement was reached that apparently allowed Hooters to continue its practice of only hiring female servers.

As of 2016, Hooters continues to hire only women for the server positions. The company’s position is that (Shamsian, 2015):

Typically, gender based hiring is not permitted ... 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.

EEOC v. Lawry’s (2009)

In this case, Brandon Little, a male busboy, complained in 2003 that he was not hired by Lawry’s Restaurants—famous for their prime rib—as a server due to his sex.  There was no dispute that from 1938–2004, Lawry’s had a policy of only hiring women into these positions.¹²  From 2004 through 2006, the EEOC and Lawry’s engaged in unsuccessful negotiations and on March 31, 2006, the EEOC filed a lawsuit against Lawry’s. On November 2, 2009, the EEOC and Lawry’s reached a $1,025,000 settlement including $500,000 to class members as well as $525,000 for future recruitment advertising and manager training.

Parting Thoughts

Successful BFOQ cases are rare, and given that we have minimal guidance from the courts, employers should use extreme caution in using sex, race or national origin to make employment decisions. What will happen in the Twin Peaks case?  If history repeats itself, it will probably be settled prior to trial, and the I-O world will yet again be deprived of a colorful case law example to use in class lectures.

Notes

^[1] Michael Surrette (1995; Surrette & LeGrand, 2015) of Springfield College has reviewed the cases involving sex as a BFOQ for prison guards in two interesting conference presentations that reveal a complex and inconsistent pattern of court decisions.

² Cavico and Mujtaba (2016) provide an excellent legal review of the BFOQ defense.

³ BFOQ cases are limited to religion, sex, or national origin (Cavico & Mujtaba, 2016).

⁴ This was a case with lots of twists and turns. The district court originally found Joe’s guilty of adverse impact, the appellate court rejected that finding and remanded the case for the district court to reconsider a disparate treatment charge, the district court subsequently agreed that it was disparate treatment, and another appellate court agreed that it was disparate treatment.

⁵ Table 1 provides a timeline for the BFOQ cases outlined in this review.

⁶ Interestingly, Ortiz reportedly agreed to a settlement in a similar lawsuit against a Pembroke Pines, FL, Hooters in 2011 (Farzan, 2016).

⁷ Three cases in the 1970s were decided by the New York State Division of Human Rights but not a court per se.

⁸ http://njlegallib.rutgers.edu/misc/aromi.pdf

⁹ Most EEOC cases begin with a complaint from an applicant or employee and EEOC then represents the person filing the complaint. With a Commissioner’s Charge, however, EEOC is focusing on systemic discrimination cases which it defines as “a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.

¹⁰ The man featured as the “Hooters Guy” was Vince Gigliotti, a manager at the Hooters in St. Petersburg, FL.

^1[1] An interesting piece of trivia:  The Hooters legal team included Don Livingston, former general counsel to EEOC!

^[1]2 They stopped this policy in 2004 and began hiring both men and women into the server positions.

Cases

Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971)

EEOC v. Jillian's of Indianapolis, IN, Inc., 279 F. Supp. 2d 974 (S.D. Ind. 2003)

EEOC v. Joe's Stone Crab, Inc., 296 F.3d 1265 (11th Cir. 2002)

EEOC v. Lawry’s Restaurants, Inc., Case No.: CV 06-1963 DDP PLAx (C.D. Cal. 2006)

EEOC v. Palm Management Corp., Commissioner’s Charge No.  340A11436, 2003

EEOC v. Parker Palm Springs Hotel, Case 5:060-cv-01044-VAP-OP (C.D. Cal. 2007)

EEOC v. Razzoo’s Inc., Case 3:05-CV-0562-P (N.D. Tex.2008)

Grushevski v. Texas Wings, Inc., C.A. No. 09-cv-00002 (S.D. Tex. 2009)

Latuga v. Hooters, Inc., Case No. 93 C 7709, Case No. 94 C 6338 (N.D. Ill. July 28, 1995)

Matter of Guardian Capital Corp. v New York State Div. of Human Rights (46 A.D. 2d 832 1974)

Matter of Guardian Capital Corp. v New York State Div. of Human Rights (48 A.D. 2d 753 1975)

Rafael Ortiz v. DMD Florida Restaurant Group, Southern District of Florida, Case number 0:16-cv-61375.

Wilson v. Southwest Airlines, Co., 517 F. Supp. 292 (N.D. Tex.1981).

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

References

Bovard, J. (November 17, 1995). The EEOC’s war on Hooters. The Wall Street Journal, p. A18.

Cavico, F. J. & Mujtaba, B. G. (2016). The bona fide occupational qualification (BFOQ) defense in employment discrimination: A narrow and limited justification exceptions.  Journal of Business Studies Quarterly, 7(4), 15-29.

Farzan, A N. (July 8, 2016).  Man suing Davie “breastaurant” Twin Peaks for gender discrimination. New Times. Retrieved from http://www.browardpalmbeach.com/news/man-suing-davie-breastaurant-twin-peaks-for-gender-discrimination-7902599.

Grimsley, K. D. (December 10, 1995).  Hooters plays hardball with the EEOC. The Washington Post, H1.

Hayes, R. (November 12, 1990).  Chicken wings or sexy chicks?  The Palm Beach Post, pp. 1E, 4E.

Horovitz, B. (October 4, 2013).  Hooters’ most embarrassing moments over 30 years. USA Today. http://www.usatoday.com/story/money/business/2013/10/04/hooters-breastaurants-casual-dining-hooters-girls/2914187.

Restaurant chain accused of hiring bias in lawsuit (March 28, 1991). Arizona Republic, B6.

Rodricks, D. (November 15, 1995).  EEOC fights for hunks to join Hooters attractions.  The Baltimore Sun.  http://articles.baltimoresun.com/1995-11-15/news/1995319108_1_hooters-eeoc-discrimination.

Shamsian, J. (September 13, 2015).  The strange loophole that lets Hooters hire only female servers. Retrieved from http://www.businessinsider.com/how-can-hooters-hire-only-women-2015-9.

Surrette, M. A. (1995, June). The use of gender as a BFOQ for the selection of correctional officers. Paper presented at the annual meeting of the International Personnel Management Association-Assessment Council, New Orleans, LA.

Surrette, M. A., & LeGrand, K. (2015, October).  Gender as a BFOQ for corrections officer assignments:  Which side of the bars prevails?  Paper presented at the annual meeting of the Society for Police and Criminal Psychology, Atlanta, GA.