They are called bona fide occupational qualifications. Even a private business can discriminate against say, an actor who can’t play a particular role due to the race or gender of the character. Same goes with certain jobs that involve lifting or an expected level physical fitness.
Could you say that you need a white male bartender for your pub in rural Texas, because your customers are racist and sexist and anyone else would make them feel uncomfortable? Or would that "choice" be limited by the protected status?
In addition, mere customer satisfaction secondary to the primary job is not enough to establish BFOQ; it's a thin line though as Hooters seems to hide behind BFOQ (thus essentially stating that the primary reason for their serving staff is sex appeal), while flight attendants cannot.
I suppose if you had an airline called "cleavage air" and had all the flight attendants wear low-cut tops, then you might get away with it.
Indeed. The law says that sex is characteristic that may be a BFOQ, and in the case of Hooters it seems to be. BFOQs may apply to sex, religion, and national origin, but not the other protected classes.
Could Hooters then reject a woman based on visual trait connected to a race, arguing that it doesn't give her the required "sex appeal"? Skin colour would be of course to obvious, but lips size or body shape?
The only way Hooters could in principle discriminate on the basis of race is if they come up with some first amendment pretext for it; e.g. the waitress job is actually an artistic performance and for some reason the art demands the performer be a certain race. That works for movie productions, but for a bar hiring waitresses? In practice it wouldn't work because the courts and the public would both write you off as an obvious racist.
That is quite fascinating to me (as a layperson and non-american). Are there any articles or is there any literature that you'd advise in that topic?
I'd be interested in something that gives more context, details and examples than the wikipedia article, but not targeted at lawyers and not excessively long.
How does that work in practice for a company like Hooters - do they spend millions on lawyers to be able to defend their position? What if you'd open a local place working in similar way to Hooters - would you go bankrupt trying to defend yourself?
> How does that work in practice for a company like Hooters - do they spend millions on lawyers to be able to defend their position?
They certainly spend millions on lawyers. They've been sued for not hiring men several times, AFAIK always settle out of court. They defend their position by claiming being a woman is a BFOQ for working at Hooters, but aren't eager to risk losing in court.
They have certainly been sued many times, but I could only find two suits related to not hiring men. The older one resulted in a large settlement and an agreement to hire regardless of sex for non-waitress positions (including bartender and host/hostess). The latter was against a single franchise and had non-disclosed settlement terms (I'm not sure how a class-action suit can have a confidential settlement; wouldn't all members of the class be notified?).
I don't know of any good resources, but application of the laws is mostly common-sense, with a slight bias towards non-discrimination in the gray areas.
It doesn't take a lawyer to tell that Hooters' primary product isn't chicken wings (Chris Rock even made a joke about it).
The reason behind the laws isn't common-sense, in the case that the 1964 Civil Rights Act is basically a list of "things currently happening that we think are bad" rather than an exhaustive list of things it's bad to discriminate on; it's also limited somewhat by the legal framework that the US congress was working within.
Labour laws in the US are also weird for similar reasons. There was a point at which union members were beaten and killed, with the local police being bought-off to not intervene. It escalated to at least one pitched battle between a private army and workers. Things like assault, battery, and murder are enforced at the local ("state" in the US terminology, not in the meaning everywhere else in the world) level not federal level, so rather than arresting the people doing this, laws were passed giving special protections to unions. Then a few decades later people argued that the special protections made unions too powerful and a bunch of extra rules limiting what unions can do were passed.
> Race can never be a BFOQ except in the specific case of artistic works, due to the first amendment.
This is technically wrong, in that the First Amendment limitation on title VII is separate from BFOQs, and race can expressly never be a BFOQ. But the effect of the limitation is similar to allowing race to work like a BFOQ in certain circumstances in artistic contexts.
> except in the specific case of artistic works, due to the first amendment.
The first amendment protected the Boy Scouts' right to express their disapproval of gays by not employing them. Is race different from a first amendment perspective?
Sexual orientation is not one of the five protected classes in legislation (sex, race, age, religion, country of origin). As such, it is not de jure protected through the entire US.
It's been argued in the 7th circuit that "sex" and "sexual orientation" apply to employment, but not elsewhere; Title IX was decided in favor of making orientation a protected class in education in 2020. 22 states protect sexual orientation by law (with 19 of them also including gender), and there's an executive order protecting both for federal jobs and contractors. But if you're in Texas, Florida, Alabama, or 25 other states? It's absolutely legal to be fired for being gay.
> But if you're in Texas, Florida, Alabama, or 25 other states? It's absolutely legal to be fired for being gay.
Recent Supreme Court precedent says that discrimination by sexual orientation is a type of discrimination by sex. If that's what you're referring to here:
> Title IX was decided in favor of making orientation a protected class in education in 2020.
The result wasn't that orientation is a protected class. It was that discrimination by orientation is an example of discrimination by sex, and sex is a protected class. So if it's not legal to fire someone for being female in Alabama, it also isn't legal to fire them for being gay, since that's the same thing.
But none of that would apply to the first amendment, since it's statutory and the first amendment is constitutional. Is there a distinction between race and sexuality relevant to the first amendment?
Look up the definition of the term "bona fide" and tell me if you think that would qualify as a good faith requirement allowing a business to discriminate their workers.
