Becker, Mary E.

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Discrimination Helps Companies Trade on Women\u27s Sexuality

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University of Chicago Law SchoolChicago UnboundJournal Articles Faculty Scholarship1996Discrimination Helps Companies Trade onWomen's SexualityMary E. BeckerFollow this and additional works at: http://chicagounbound.uchicago.edu/journal_articlesPart of the Law CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in JournalArticles by an authorized administrator of Chicago Unbound. For more information, please contact unbound@law.uchicago.edu.Recommended CitationMary E. Becker, "Discrimination Helps Companies Trade on Women's Sexuality," 82 ABA Journal 40 (1996).Sex DiscriminationDoes refusing to hire men as food servers violate the Civil Rights Act?The "Hooters girl" figures to be an endangeredspecies if the federal Equal Employment OpportunityCommission has its way.This past November, when Hooters-theAtlanta-based restaurant chain-publicly re-airedcharges that it discriminates against men by hiringonly female food servers, bartenders and hosts, itinvited a new assessment of whether a job can bedefined as for women only.According to the EEOC, Hooters cannot claimthat sex is a bona fide occupational qualification, andan exemption to the Civil Rights Act, since theessence of its business is selling food, notatmosphere. Hooters thinks differently and claimscompliance will drive it out of business,Of course, the legal issue of whether gendershould be a job qualification is not new. Someentertainment and fashion jobs have been held torequire females exclusively. Whether this is true forsome of the staff at a theme restaurant is an openquestion.Debating the point here are Mary Becker,professor and employment law specialist at theUniversity of Chicago law school, and Patricia A.Casey, Hooters' attorney and partner at Akin, Gump,Strauss, Hauer & Feld in Washington, D.C.Yes: Discrimination helps companies trade on women's sexualityIn the 1970s, Southwest Airlinesdressed its stewardesses in hot pants andgo-go boots, and ran an ad campaign withthe theme, "Fly me." Southwest argued thatsex was the essence of its marketing to malebusiness travelers, and that its females-only hiring policy was "necessary for the con-tinued success of its image and its business."Judge Patrick Higginbotham of theU.S. District Court for Northern Texas heldthat "sex does not become a bona fide occu-pational qualification merely because anemployer chose to exploit female sexualityas a marketing tool, or to better [e]nsureprofitability." Higginbotham said employ-ing male stewards would not doom the air-line, and he was right. Southwest went onto find a new focus as a budget airline.Now, a restaurant chain is arguing itsbusiness is not food but the ambiance andentertainment created for men by Hooters"girls." These women usually wear tightshort-shorts and tank tops or half-teeswith a large-eyed owl on the front; someshirt backs read "More than a mouthful."If the case goes to trial, the question will bewhether to hold the line defined in the Southwest case:no defense for selling sex unless sex-not transporta-tion or food-is the essence of the business.How can opening these jobs to men be good forwomen or necessary to avoid sex discrimination? IfHooters hires men, fewer women will be hired. Hootersmight go out of business, especially if forced to pay the$22 million being claimed in back wages for men whowere not hired.Nevertheless, a loss for Hooters will be a win forwomen and certainly does not mean the chain willhave to close shop. In fact, it may gainfrom having more women patrons. Also:* Women employees, like women whowork as Southwest Airlines flight atten-dants today, will be allowed to wear rea-sonable, comfortable uniforms.- Sexual harassment of Hooters girlsby customers and male managers will godown (levels now are reportedly quite high).* Women at the unisex Hooters will beallowed to keep working even when theystop looking like the youthful cheerleader-surfer girl-next-door.It is true that, in a world without a dis-criminatory Hooters, women will not be ableto trade their youth, beauty and sex appealfor a job with good wages and (often) a lotof sexual harassment. But the woman whodoes get the job will have greater job secu-rity, as well as better working conditions.On a broad, societal level, the impor-tance of Hooters to women is even clearer.Think of the jobs that could become part ofthe sex industry were employers simplyfree to add female sexuality to any job de-scription: all customer-contact jobs in transportation,restaurants, sales, marketing, service industries, etc.What would be the result of a Hooters victory ifother employers followed the lead? Those in so-calledwomen's jobs would have little job security and be sub-ject to higher levels of harassment. I suspect womenmight earn even less per hour than they do today.It is true that some women-and many men-willnot be pleased if the Hooters girl goes the way of thePlayboy bunny. But the great majority of women don'tenjoy wearing a skimpy costume and putting up withsexual harassment just to earn a living.40 ABA JOURNAL / FEBRUARY 1996 ABAJ/CYNTHIIA HOWENo: A business has aThe EEOC's charge of sex discrimina-tion against Hooters restaurants invitesobservers to muddle the legal and politicalissues.Under the law, an employer may hireon the basis of gender (or national origin orreligion, but never race) if sex "is a bonafide occupational qualification reasonablynecessary to the normal operation of thatparticular business." For Hooters, the realissue turns on statutory construction andcommon sense: Do you have to be female toperform the job of a Hooters girl? I say yes.Politically incorrect it may be, but unlaw-ful it is not.The EEOC has concluded that being arestaurant is the essence of the Hootersbusiness, and that males and females areequally capable of serving food there. IfHooters was only a restaurant, one mightagree. But food service is not the definingessence of the Hooters business. Food issecondary to the actual focus of the enter-prise: the sexiness of the Hooters girls.The EEOC seems to believe that abusiness can have only one defining characteristic, or"essence." Consider this: Is the essence of Playboy mag-azine the articles or the photos? Do people enjoy theRockettes because of the synchronized dancing or theglamorous, long-legged females? Don't these business-es have the right to decide exactly what products tooffer on the market? And who is the EEOC to say thatonly one of the many elements of Hooters is the essen-tial, defining one?The 7th U.S. Circuit Court of Appeals at Chicagorecently explained that prisons have more than one es-sential, defining function: punishment, rehabilitation,choose its own: characterdeterrence and public safety. Of courseHooters sells food, drink, posters, T-shirts,calendars and other products, but it alsooffers an atmosphere of good-humored,wholesome sex appeal that the Hootersgirls embody. Their sexy cheerleader imagedefines the enterprise. Playboy marketsprovocative photos as well as interestinginterviews and articles; who is to say whatthe purchaser believes he is paying forwhen he buys Playboy magazine?Hooters' case demonstrates the limi-tations of the EEOC's expertise-quitesimply, the agency lacks the business acu-men necessary to determine what ele-ments are "essential" to an enterprise. In-deed, it currently is making a similarmistake in a case against the Lillie Rubinclothing stores, in which it is asking thewomen's store to hire men as well aswomen to assist patrons in the dressingrooms. (According to an EEOC spokesper-son, women might "love" to be fitted bymale attendants.)Opponents say that because Hooterswelcomes children, it is basically a "family" restaurant.Children may be taken to R-rated movies, too, but thatdoesn't mean the target market is the family. Obvi-ously Hooters' target audience is adult males. If somepatrons choose to bring their children, Hooters ofcourse will make them feel welcome.And don't tell me about flight attendants unlessyou are prepared to argue that sexiness is just as im-portant as a safe and timely arrival to your next busi-ness trip. Hooters can argue that its patrons care asmuch-or more-about being in the presence of theHooters girls as they do about the burgers and beer. UABA JOURNAL / FEBRUARY 1996 41ABAI/PETE SOUZA; ILLUSTRATION BYJOHN SCHMELZER

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Discrimination Helps Companies Trade on Women\u27s Sexuality

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