Thursday, March 30, 2006
Of Bfoqs and Hooters Air
As featured on Dr. Sanity blog's Carnival of Insanities:
Every year during my employment discrimination law class, we end up discussing the Hooters Restaurant case for purposes of determining what is a bona fide occupational qualification (bfoq) under Title VII. The question in such cases is whether the hiring criteria that the employer employed, although unlawfully discriminatory, nevertheless serves the central mission of the employer and can be saved under the bfoq affirmative defense.
For Hooters, for example, the question is whether the central mission of the restaurant is vicarious sexual entertainment or serving food. The EEOC sued the resaurant on the basis that its central mission was providing food and thus it could not exlcude men from waiter positions at the restaurant. Eventually, the parties settled on terms favorable to Hooters because, as everyone know, Hooters is about vicarious sexual entertainment, not food.
In any event, our conversation of bfoqs and Hooters would often conclude by considering Hooters Air, which had scaddily dressed women performing some of the functions of the airline flight attendant. Bfoq?
Now comes word that Hooters Air is suspending its regularly scheduled services to Myrtle Beach, SC and other cities after three years of service.
But I guess it still makes a good bfoq hypothetical. Oh, well.
I'm connected with BWI airport and therefore familiar with Hooter's Air. If as reported they are scaling back their service it would appear that they have the wrong business model. In other words people want air service not vicarious sexual thrills, even when headed for a golf outing. This raises the question: is the BFOQ to be judged based on the companies business model as understood by it's managers or by a jury which is free to ignore the company's actual business model becaust they find it repugnant. Dare we let the market decide if an obnoxious business model is worthy of being perpetuated.
Posted by: robert l flanagan | Mar 31, 2006 3:20:48 AM
Shucks, I use that hypothetical too. I had a great discussion of the Hooters restaurant/waitress issue this semester in my Emp. Disc. class, in part because one of my students was a former manager at Hooters and had some interesting background info.
Posted by: Joseph Slater | Mar 30, 2006 7:16:28 AM