# Topless discrimination law **URL:** \ **Category:** Factual Questions\ **Created:** [November 25, 2012, 3:35pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064 "2012-11-25T15:35:51Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bullitt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bullitt/32/5725_2.png) [@Bullitt](https://boards.straightdope.com/u/Bullitt)\ **Post date:** [November 26, 2012, 4:01am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/21 "2012-11-26T04:01:11Z")
> [@chacoguy](#): > > How do Chinese restaurants get away with having only Asian wait staff? One of my favorite local sushi restaurants has Mexican sushi chefs. I guess they are Mexicanese. e7t ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [November 26, 2012, 10:08am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/22 "2012-11-26T10:08:55Z")
> [@chacoguy](#): > > How do Chinese restaurants get away with having only Asian wait staff? Because it’s an exception to the rule. At least in the UK. But they’re not allowed to discriminate behind the scenes. ---
**Author:** ![Incubus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@Incubus](https://boards.straightdope.com/u/Incubus)\ **Post date:** [November 26, 2012, 3:50pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/23 "2012-11-26T15:50:40Z")
Another thing is I heard (sorry no cite) that people will be less likely to feel a chinese restaurant is “authentic” if there are white servers. If you ever get a peek in the back in some restaurants, you may be surprised to see latino, not chinese cooks! Indian restaurants have a similar phenomenon. I’m not sure about the legality of this. But it did lead to some jokes with my wife regarding her people’s cooking prowess 😉 ---
**Author:** ![Keeve](https://avatars.discourse-cdn.com/v4/letter/k/f07891/32.png) [@Keeve](https://boards.straightdope.com/u/Keeve)\ **Post date:** [November 26, 2012, 4:32pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/24 "2012-11-26T16:32:29Z")
> [@Skald\_the\_Rhymer](#): > > Not only are family restaurants typically below the 25-person limit or so that would trigger the law, but they also hire more by word of mouth than ads. I doubt that it’s illegal to begin your hiring process by asking your friends & relatives if any of their kids need and job and telling said kids to come in–and if it is, it shouldn’t be. I never heard of a minimum number of employees being needed for anti-discrimination laws. The end of this post is the real answer: By avoiding the advertising, and going solely by word-of-mouth, the jobs are offered to only the select group to start with. So no one gets turned away for being non-Asian, and no laws are broken. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [November 26, 2012, 5:18pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/25 "2012-11-26T17:18:44Z")
> [@echo7tango](#): > > One of my favorite local sushi restaurants has Mexican sushi chefs. I guess they are Mexicanese. > e7t At my favorite Chinese/Sushi restaurant all servers are Chinese. I was invited back into the kitchen one night and was surprised to see Mexican dishwashers and food prep workers. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 26, 2012, 6:11pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/26 "2012-11-26T18:11:38Z")
> [@Carryon](#): > > Not true, race is a fully protected class. Ethnic restaurants get away with this, because they typically employ only a few members. I am not sure what the maximum is, it’s like if you employee only five or ten people, your business is small enough to be exempt from the discrimination laws. This is nonsense, though any number of employment regulations \*are \*applicable only to employers of a certain size. A white person has the same right to work at Hu’s Golden Palace as he does at Applebees’. The distinction, at least for a Chinese restaurant, is as **Incubus** suggests: that _authenticity_ can (in most jurisdictions) be considered a bona fide occupational qualification. So, the Chinese restaurant can discriminate against non-Chinese front-of-house staff (or chefs) if it can show that the ethnic makeup of its staff is part of the “authentic Chinese dining experience” it offers. ---
**Author:** ![Bullitt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bullitt/32/5725_2.png) [@Bullitt](https://boards.straightdope.com/u/Bullitt)\ **Post date:** [November 26, 2012, 6:12pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/27 "2012-11-26T18:12:10Z")
> [@kayaker](#): > > At my favorite Chinese/Sushi restaurant all servers are Chinese. I was invited back into the kitchen one night and was surprised to see Mexican dishwashers and food prep workers. It’s all about the image. I’ll be impressed / shocked when, at my favorite dim sum places in San Francisco, _ **those** _ workers are Mexican. Or Middle Eastern. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 27, 2012, 6:18am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/28 "2012-11-27T06:18:40Z")
There is some law in this area to guide us. Minimum number of employees: Federal law, specifically Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of (among other things), sex, race, and national origin. Title VII’s prohibition only applies, however, to businesses with more than 15 employees. [42 USC § 2000e(b)](http://www.law.cornell.edu/uscode/text/42/2000e). So in the OP’s example, as long as the barber shop has fewer than 15 employees, it can hire or reject anyone it wants without breaking federal law (some states may have a lower minimum). Bona fide employment qualification: Sex can be a BFOQ. [42 USC § 2000e–2(e)(1)](http://www.law.cornell.edu/uscode/text/42/2000e-2). At one end of the spectrum, work that is primarily selling sexual content, like stripping, is commonly cited as a classic example where sex is a BFOQ. I’ve never seen case law on this point, though, presumably because men rarely sue to become strippers. At the other end, courts have consistently rejected claims that being female is a BFOQ for flight attendants. Wilson v. Southwest Airlines Co. (1981). Somewhere in the middle are the restaurants themed around big boobs, and the law here is murky. Hooters famously got sued for not hiring men as servers, but it settled with the EEOC, so the case yielded no binding rulings. The EEOC agreed to a settlement that allowed Hooters to continue to hire only female servers but required them to hire men as bartenders and other non-server jobs. (Latuga v. Hooters, Inc., 1996). This suggests that discrimination can be assessed on the basis of a whole restaurant, and not just by individual jobs. On the other hand, a smaller, similar restaurant called Jillian’s got hammered by the EEOC into [agreeing](http://www.eeoc.gov/eeoc/newsroom/release/archive/8-13-04.html) to advertise all jobs sex-neutrally. So, is the sexy element of the barber shop enough to move it toward the strip-club situation rather than the flight-attendant model? The Jillian’s case suggests not; it’s hard to see why hair cutting should be more inherently sexual than food service. The Hooters case, however, suggests that the OP’s barber shop might pass muster if there are enough non-stylist jobs to be given to men (I’m not sure that there are in a barber shop, though, not like there are in a restaurant). Chinese restaurant: Race can never be a BFOQ, but national origin can. § 2000e–2(e)(1). One court once stated, as an aside, that Chinese restaurants would likely be an example of authenticity-based national-origin hiring as a BFOQ. This remark gets repeated a lot, but I’ve never seen any actual law reaching this conclusion, so it has a certain urban-legend quality to it. More concretely, courts have rejected authenticity-based male-only hiring from a restaurant that wanted “Old-World ambience” (EEOC v. Joe’s Stone Crabs Inc., 2000), and preppy whites-only hiring by Abercrombie and Fitch. Maybe a Chinese restaurant would fare better, but I think it’s not necessarily assured that a court would say that Chinese waiters are an integral part of having Chinese food. Again, though, maybe it helps to hire non-Chinese kitchen staff (and of course if there are fewer than 15 employees, anything goes). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 27, 2012, 2:13pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/29 "2012-11-27T14:13:17Z")
> [@Tom\_Tildrum](#): > > Minimum number of employees: Federal law, specifically Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of (among other things), sex, race, and national origin. Title VII’s prohibition only applies, however, to businesses with more than 15 employees. [42 USC § 2000e(b)](http://www.law.cornell.edu/uscode/text/42/2000e). So in the OP’s example, as long as the barber shop has fewer than 15 employees, it can hire or reject anyone it wants without breaking federal law (some states may have a lower minimum). I stand properly corrected. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 27, 2012, 4:30pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/30 "2012-11-27T16:30:12Z")
Finally, some actual law! Thanks, Tom. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 28, 2012, 12:11am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/31 "2012-11-28T00:11:03Z")
> [@](#): > > Chinese restaurant: Race can never be a BFOQ, but national origin can. Do you mean that race can’t be a BFOQ for a restaurant, or that it can never be? Because it seems to me that race is often a BFOQ for actors. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 28, 2012, 12:43am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/32 "2012-11-28T00:43:10Z")
> [@Tom\_Tildrum](#): > > Hooters famously got sued for not hiring men as servers, but it settled with the EEOC, so the case yielded no binding rulings. The EEOC agreed to a settlement that allowed Hooters to continue to hire only female servers but required them to hire men as bartenders and other non-server jobs. (Latuga v. Hooters, Inc., 1996). This suggests that discrimination can be assessed on the basis of a whole restaurant, and not just by individual jobs. On the other hand, a smaller, similar restaurant called Jillian’s got hammered by the EEOC into [agreeing](http://www.eeoc.gov/eeoc/newsroom/release/archive/8-13-04.html) to advertise all jobs sex-neutrally. Jillian’s isn’t really a similar restaurant. It’s an arcade/restaurant combo, like Dave & Buster’s (which I understand now owns the franchise anyway). Hooters is a place where hot chicks serve wings in skanky uniforms; Jillian’s is a bowling alley/arcade/restaurant that happens to have skanky uniforms. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 28, 2012, 12:50am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/33 "2012-11-28T00:50:10Z")
Missed edit window: Jillian’s didn’t have the same sort of _authenticity_ argument that Hooters did. They also went belly-up during the litigation, which probably affected the outcome. ---
**Author:** ![Ethilrist](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ethilrist/32/4604_2.png) [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)\ **Post date:** [November 28, 2012, 2:02am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/34 "2012-11-28T02:02:23Z")
> [@Chronos](#): > > Do you mean that race can’t be a BFOQ for a restaurant, or that it can never be? Because it seems to me that race is often a BFOQ for actors. I’m still trying to figure out how Denzel Washington and Keanu Reeves were brothers in _Much Ado About Nothing._ ---
**Author:** ![WhyNot](https://avatars.discourse-cdn.com/v4/letter/w/c77e96/32.png) [@WhyNot](https://boards.straightdope.com/u/WhyNot)\ **Post date:** [November 28, 2012, 2:21am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/35 "2012-11-28T02:21:12Z")
> [@Ethilrist](#): > > I’m still trying to figure out how Denzel Washington and Keanu Reeves were brothers in _Much Ado About Nothing._ Maybe they’re twins.[😉](http://abcnews.go.com/Health/twins-white-black-born-biracial-parents-stirs-issues/story?id=12984334#.ULV0zmdmUlI) ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 28, 2012, 8:00am UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/36 "2012-11-28T08:00:58Z")
> [@Chronos](#): > > Do you mean that race can’t be a BFOQ for a restaurant, or that it can never be? Because it seems to me that race is often a BFOQ for actors. The statute says that sex, religion, and national origin can be BFOQs, and it pointedly omits race. There are no distinctions made for particular professions. So yes, technically the company casting for a biopic about Malcolm X (or Richard Nixon) is violating Title VII if it only auditions black (or only white) actors. However, casting decisions for creative works are entitled to a certain level of First Amendment protection, because your right to free speech includes a right to have your play or TV show look the way you envisioned. This overrides Title VII. For instance, the producers of the Bachelor and Bachelorette TV shows got [sued](http://blogs.indiewire.com/shadowandact/discrimination-lawsuit-against-abcs-the-bachelor-thrown-out) for never having a black lead, and the case was thrown out on 1st A. grounds. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [November 28, 2012, 4:45pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/37 "2012-11-28T16:45:16Z")
> [@Ethilrist](#): > > I’m still trying to figure out how Denzel Washington and Keanu Reeves were brothers in _Much Ado About Nothing._ There’s this thing called suspension of disbelief you may wish to look into. I’ll teleport you some extra if you like. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [November 28, 2012, 4:53pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/38 "2012-11-28T16:53:11Z")
> [@Skald\_the\_Rhymer](#): > > There’s this thing called suspension of disbelief you may wish to look into. I’ll teleport you some extra if you like. They’re actually half-brothers in the play, so no suspension of disbelief necessary. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [November 28, 2012, 4:59pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/39 "2012-11-28T16:59:13Z")
> [@Simplicio](#): > > They’re actually half-brothers in the play, so no suspension of disbelief necessary. I know. And they don’t even need to be half-brothers. My eldest brother and I have the same parents, but he’s far, far lighter skinned than I; he can pass for white if he wishes, and I suspect he often does. It’s a result of our maternal grandfather and paternal grandmother both having a lot of white ancestry; my brother and two of our double-first cousins got a lot more of the European melanin genes than the rest of us. ---
**Author:** ![Keeve](https://avatars.discourse-cdn.com/v4/letter/k/f07891/32.png) [@Keeve](https://boards.straightdope.com/u/Keeve)\ **Post date:** [November 29, 2012, 10:17pm UTC](https://boards.straightdope.com/t/topless-discrimination-law/642064/40 "2012-11-29T22:17:29Z")
> [@Tom\_Tildrum](#): > > Minimum number of employees: Federal law, specifically Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of (among other things), sex, race, and national origin. Title VII’s prohibition only applies, however, to businesses with more than 15 employees. [42 USC § 2000e(b)](http://www.law.cornell.edu/uscode/text/42/2000e). So in the OP’s example, as long as the barber shop has fewer than 15 employees, it can hire or reject anyone it wants without breaking federal law (some states may have a lower minimum). I stand corrected. Thanks. But I’m very curious about the logic for this exemption. Let’s compare this, for example, to the laws which require an employer to accommodate the needs of his employees (whether those needs are of a medical nature, religious nature, or whatever). I can understand that these laws impose a bigger hardship to a small employer, because he can’t substitute other employees (or otherwise improvise) as easily as a large employer can. But why should a small employer be allowed to discriminate? Why should he be allowed to reject a qualified candidate explicitly because the candidate is part of an otherwise-protected class? [Previous page](https://boards.straightdope.com/t/topless-discrimination-law/642064.md?page=1) [Next page](https://boards.straightdope.com/t/topless-discrimination-law/642064.md?page=3)