If you’ve been to a Hooters lately, you’ve probably noticed something about the servers.
It’s pretty obvious: They’re all women. Hooters doesn’t hire any men as servers.
The practice flies in the face of conventional job-hiring: Based on the 14th Amendment and the Civil Rights Act of 1964, discriminatory hiring is supposed to be illegal, right? A man has the right to be a Hooters server if he wants to, so the thinking goes.
That’s just what a few men thought in 1997. They were turned down by Hooters for server jobs and filed two lawsuits that were eventually combined into a class-action lawsuit in Chicago, the Chicago Tribune reported at the time.
Hooters settled the litigation for $3.75 million and agreed to open up some “gender-neutral” positions to men, according to the Tribune. Hooters did not agree to let men work as servers, and it had a legitimate legal argument for refusing to do so.
“Hooters argued BFOQ [bona fide occupational qualification] under essence of the business,” David Sherwyn, a law professor at Cornell University’s School of Hotel Administration, told Business Insider.
Title VII of the Civil Rights Act lets companies discriminate on the basis of “religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.”
Hooters is what has been called a “breastaurant,” a dining establishment that often features scantily clad women to cater to a male clientele. As such, the “Hooters Girl,” the company argues, is an essential part of its business.
From its website:
We’re proud of who we are. Yes, we have a pretty face. And sex appeal is part of our thing, but it’s not the only thing … There will always be those out there looking to take a shot at us, or have the government dictate what we can or can’t do, but we’ll just take it in stride and continue our quest to provide a fun, enlightened atmosphere where you can enjoy the finer things in life. And really, what is so offensive about an owl, anyway?
“The Hooters Girl that customers think of when they go to Hooters is still alive and well,” Brenda Feis, an attorney who represented Hooters in the 1997 lawsuits, told the Chicago Tribune in 1997.
In a statement to Business Insider, Hooters confirmed its argument that its hiring of women-only servers complies with BFOQ requirements:
Typically, gender based hiring is not permitted … The law allows the discrimination when it is necessary for the purpose of authenticity or genuineness as for an actor or fashion model. While we offer world famous wings and burgers, the essence of our business is the Hooters Girl and the experience she provides to our customers. Hooters Girls are entertainers. They audition for their roles and, once hired, they must maintain a glamorous appearance, and sing, dance and engage the customers to provide a unique Hooters experience.
Hooters was sued again in 2009 over the same issue and settled again with its hiring practices intact.
Not every company can successfully argue that it’s okay to discriminate against men.
In 1981, a federal court found that Southwest Airline’s policy of hiring only women flight attendants and ticket agents violated the Civil Rights Act. The court also found the airline’s practice of capping flight attendants’ height at 5 feet 9 inches effectively discriminated against men.