Legal discrimination in hiring practices

General Questions
#1

I’ve often wondered about establishments like Hooters and their hiring practices/legal issues… obviously, they discriminate in some way because their employees are almost all thin blonde bimbo… er, exuberant cheerful young ladies. How is this legal? Are there other examples of this (Chippendales, for example?). Since Hooters is a restaurant, I have trouble understanding how it could skirt the legal requirement to hire regardless of sex or disability.

Apologies if this has been asked before, I’m relatively new.
Inspired by these comments:

Originally Posted by Windwalker
Can you deny service based on sexual orientation/race/sex/sickness? How about people who don’t dress well? Or own a Dodge Caravan?

I’m truly curious.

sexual orientation - depends on state/city law
race - no, federal law
sex - no, federal law, possibly some exceptions for explicitly male/female services (e.g. maybe an OB/gyn could refuse to be primary care doctor for a male)
sickness - yes (but disability, NO!)
dressing well - yes (unless it is a proxy for race)
Dodge Caravan - yes

The business owner has the right unless the government takes it away.

#2

Well I think the uniform does the discriminating for them. the girls that I know that want to work at hooter, or do in two cases, are hot and want to flaunt it. If you take you general self-conscious fat girl she’s not going to want to were spandex mini shorts and a low cut spandex top. If she applied they would probably hire her just so there would be no discrimination but after crappy tips and hearing laughter when she went by tables I’m not any one’s self esteem is strong enough to stand up to that environment and they would probably quite.

#3

Interesting. Hadn’t thought about the “self-selection” angle. What about women who are deluded into thinking they are teh hotness but are not so much… would a pretext be made up to fire them? I bet that’s easy enough in a restaurant environment.

#4

If I recall, Hooters was the subject of a lawsuit a few years ago. If I understand it, if a business is licensed (and taxed) as an entertainment venue, then they have a legal basis for only hiring a specific physical type. But if a business is licensed as a restaurant, then there’s no such basis for discriminating by either gender or physique.

Allegedly, Hooters was trying to have it both ways: they were licensed as a restaurant, but had the hiring practices of an entertainment venue. I don’t know how it turned out.

#5

Well I have been to some hooters that had waitresses that were not that hot. I’m guessing that they thought they were. I’ve only been to one Hooters that was 100% hot and it is the only good thing I have to say about the times I’ve lived in Texas.

#6

Since Hooter’s entire business concept is based on attractive women with big breasts wearing skimpy outfits and flirting with the customers then being both attractive and female would qualify as a bona fide occupation requirment.

#7

I go to Hooters on a pretty regular basis. All the girls that I have seen are at least slightly attractive, but not all of them are particularly hot. (I guess it will depend on your personal preferences – what body type you are most attracted to, etc.)

Some of the girls are quite skinny and lack the massive mammaries that one would expect in this establishment. A couple of the waitresses are actually “bony thin”/anorexic!

A good number of them (the majority), of course, are very pretty/sexy/busty and conform to the “Hooters Girl” stereotype!

#8

Hooters could hire men as office managers, line cooks, janitors, and the like, but still reserve the waitress spots for women. They can make a compelling case for the women only policy for wait staff (That’s the whole premise of the restaurant)

If they had a policy that only women (or only men) could be upper management
then they would have a MUCH harder time justifying that…

#9

I can tell you one thing for sure: “ugly” and “small breasted” are not protected classes. Abercrombie & Fitch recently got in hot water for hiring only young, hot, white women. Now they hire only young, hot women of all nationalities. They probably write their job descriptions such that it excludes the disabled from being “qualified” (remember its only illegal to discrimate against those of a protected class who are qualified to do the job), or they select the young, hot, disabled.

#10

Then why don’t all (nasty, bad) companies “write their job descriptions” so that the disabled don’t qualify? I work in an office, but couldn’t they write the job description such that one must be able to lift 50 lbs over your head or something? Almost anything is justifiable if you write it carefully. That 50 lbs could be for the semi-annual mandatory printer inspection.

#11

The thing is, there’s not a blanket “no” in terms of discrimination. There are exceptional cases where discrimination is allowed. The main one is called “bona fide occupational qualifications” or BFOQ. The silly example: if the CIA is trying to hire a young male Arab to infiltrate a suspected terrorist organization, and a disabled black female applies for the role, they don’t have to even test her. She doesn’t fit the business need.

So, some restaurants &c have been able to argue that they have a business requirement for certain body types, etc. The courts, in general, are sceptical of such arguments, to be sure they’re real (“bona fide”) and not just an excuse for discrimination. However, if the argument can be made, legal discrimination is possible.

There are a few other exceptions to the general discrimination rules as well.

#12

I discriminate against stupid people whenever I hire.

#13

Hooters has apparently demonstrated the entertainment aspect of their hiring to the extent of being able to hire only female servers. Although IIRC the EEOC just stopped pursuing action against them, not actually finding in their favor. They may still be open to lawsuits from women over 40 or with disabilities that still allow them to perform the essential functions of the job. However, if the entertainment aspect sets a precedent, that might help Hooters to prevail in such a lawsuit. In some localities (Santa Cruz, CA, I believe is one) obesity is a legally protected class. If there’s Hooters in Santa Cruz, they might be subject to a lawsuit there. (Ironic fun fact – that law came from a health food store that didn’t want to hire an obese person.) Ugly, however, is not a protected class, so Hooters is in the clear there.

Much the same for Abercrombie & Fitch. I suspect they are still at some legal risk from people over 40 or with a disability.

Regarding writing requirements into job descriptions, this is viewed with a skeptical eye. Most sizable employers will have job descriptions which include a section called “essential functions.” If this is challenged in a disability discrimination lawsuit, treating a function as essential needs to be defensible. If you have a secretarial pool of 20 people, it probably wouldn’t be defensible to require all of them to be able to drive to the post office, for example. If you have one secretary for the office, maybe it would.

Discrimination laws generally only get enforced by a damaged party filing a lawsuit. So there is no cop showing up to see if an employer discriminated today. Those employers required to be Affirmative Action Employers do get some proactive oversight from the government.

[nitpick] The CIA example is a little off, since the federal government is under somewhat different laws w/r/t hiring discrimination. A private employer would probably not get the same leeway in hiring, say, someone to focus on selling to the Arab market. [/nitpick]

#14

Most of it has been nailed already, especially by Harriet the Spry. However, it’s hard to win a discrimination case if you have no clear evidence. An employer doesn’t have to tell you why you weren’t hired. If they’re smart, they won’t. So, if you have only a feeling you weren’t hired because of your cup size, your hair color, or your Uzbek heritage, most lawyers won’t even take your case. The employer has to make the mistake of telling you, “We never hire Uzbeks with small mammaries.”

Mind you, some will make these mistakes. They can’t legally ask your age or your marital status. Some dimwits will ask anyway.

#15

I am not seeing the nit that you are trying to pick. First, in what way does the federal government fall under different hiring laws? My observations in dealing with the federal government have been that they are bound to the same laws, and in practice are even more careful about following them than a typical private sector company, which does not face the scrutiny of taxpayers and Congress.

Second, the requirement to sell to the Arab market does not on its face require an Arab, but someone who needs to pose as an Arab among Arabs certainly needs to be an Arab.

#16

Have there ever been any restaurants based on providing hunky male-only servers for a mostly female clientele? (The OP mentioned Chippendales but they are an entertainment group.) Are they as successful at keeping the legal houds at bay as Hooters?

#17

Prior discussion about sex & hiring: http://boards.straightdope.com/sdmb/showthread.php?t=412786

#18

I just went through a couple days of management training and the consultant said that it is in no way illegal to ask such questions but it is mistakenly believed so by many. It is, however, illegal to act upon the information provided. And gives the interviewee room to maneuver. So she said even though you can ask, you’d be stupid to do so.

#19

You can’t really do it that way, although I know what you mean.

http://www.ada.gov/pubs/ada.htm#Anchor-Sec-47857

The trick is to make sure you get everything that’s important about the job into a job description.

They just settled a lawsuit based on disability discrimination, btw: http://www.democratandchronicle.com/apps/pbcs.dll/article?AID=/20070824/BUSINESS/708240333/1001 Apparently, they are also getting sued by a pregnant employee: http://www.presstelegram.com/news/ci_6736218

Hooters also settled a suit brought by male applicants who had been denied tipped positions for not being female: http://query.nytimes.com/gst/fullpage.html?res=9904E6DA1E3AF932A35753C1A961958260

#20

The consultant is exactly right. You can ask whatever questions you want. You can ask, “Is it true that your mother once had sexual relations with a Negro?” and/or “Is it possible that you are now a Mulatto child, or at least an Octaroon?”

Now, if you ask these questions of an interviewee, and he/she is not hired, this person may take these odd questions as evidence of your potential bias against your race, and it would be up to a judge and jury to decide the final question.

But simply asking something, asking anything at all, is not illegal. This is an urban legend which survives everywhere that I have tried to stamp it out…