The Hooters restaurant chain is a frequently discussed example of a potentially discriminatory employer due to its policy of hiring only female waitstaff who wear sexually provocative uniforms. The company defends this practice by arguing that its female employees are essential to its business model, which markets through sex appeal to attract customers. Hooters has faced discrimination lawsuits from men for its hiring practices but has consistently settled these cases out of court, thereby avoiding a definitive legal ruling on whether its policies constitute a valid BFOQ.

Hooters as a Case Study in BFOQ Claims

A new restaurant, 'Knights of the Round Table,' is designed with a medieval theme. The management decides to hire only men for server positions, requiring them to dress as 'knights.' They argue that this is essential for maintaining the historical authenticity and immersive experience of the restaurant, which they claim their customers expect. Based on legal principles regarding hiring practices, evaluate the strength of the restaurant's justification. Is this policy likely to be considered legally acceptable? Explain your reasoning.

Hiring Policy at a Themed Restaurant

Customer preference is not a legally acceptable reason for establishing a BFOQ. This principle is part of the 'essence of the business' test. For example, an airline cannot justify hiring only female flight attendants based on the preference of its customers, because doing so is not essential to the business of transportation.

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Courts use a three-part test to evaluate sex-related BFOQ claims. The first part assesses whether all or substantially all members of one gender are incapable of performing the job; for example, a 'must lift 30 pounds' requirement often fails this test, as most women can meet it. The second is the 'essence of the business' test, which asks if hiring another gender would undermine the core business operation. This was used to rule against Pan Am's policy of hiring only female flight attendants, establishing that customer preference is not a valid defense. The third part examines whether the employer could make reasonable alternative accommodations, such as reassigning staff to avoid placing a female employee in a male-only section of a prison.

Three-Part Test for Sex-Related BFOQs

Spielman, R. M., Jenkins, W. J., & Lovett, M. D. (2020, April 22). Psychology (2nd ed.). OpenStax. https://openstax.org/books/psychology-2e/pages/1-introduction

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