Disclaimer: This article does not necessarily reflect the views or beliefs of the Campbell Law Observer. It is merely an observation from a personal experience and written in good faith under the tenet of free expression of ideas. “What is freedom of expression? Without the freedom to offend, it ceases to exist.” – Salman Rushdie
Before attending Campbell School of Law, during my undergraduate studies at East Carolina University in Greenville, NC, I worked part-time at the locally beloved and nationally recognized Sup Dogs – a casual hot-dog and burger restaurant that is ranked 15th Best Hot Dog in America with a uniquely heartwarming backstory. Its theme is high-energy service with creative specialty hot dogs and burgers. What makes Sup Dogs so beloved by East Carolinians is its jovial, light humored, and playful theme making an almost satirical jab at the commercially popular Hooters Restaurant. The family-restaurant-by-day, bar-hangout-by-night is a staple of the Greenville community and one of my fondest memories while going to East Carolina.
Exercise, I thought you said EXTRA FRIES
Sup Dogs’ business model, similar to that of Hooters, is girls “up-front” as servers and bartenders, and guys “in the back” as cooks, dishwashers, and “bus guys.” This model is imperative to the clientele that it aims at serving, i.e., East Carolina college students and Greenville locals. This model is symbiotic to both males and females. Commonsensically, girls acquire larger tips than guy servers usually do by appealing to the male clientele; a portion of the total “tip-out” is split amongst all the employees at the end of every other week, thereby benefiting the guys with a larger tip-out. That said, Sup Dogs would completely lose its novelty and originality if it were forced to completely scrap its business model by putting males in the iconic and traditionally female serving positions.
This is not to say that no guy should ever serve and no girl should ever cook. On the contrary, the question is whether, in the context of sex, a business should have the unbridled freedom of experimentation to target its choice of the market without its hand being forced under the notion of required equality? In recent years, the answer appears to be “no”.
Title VII Ignores the Business Reality of Market Capitalism in the Hospitality Industry
Under Title VII, it is unlawful for an employer to fail or refuse to hire, discharge, discriminate against, or limit, segregate, or classify an employee in any way that would deprive any individual of employment opportunities because of the individual’s race, color, religion, sex, or national origin. However, Title VII makes an exception for employers to hire and employ individuals “on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business.” As stated in Diaz v. Pan Am. World Airways, Inc., sex-based discrimination is therefore only valid when the essence of the business operation would be undermined by not hiring members of one sex exclusively.
Litigation over sex-based marketing niches in the hospitality market has been ongoing since the 1970s and 80s with male flight attendants. In Wilson v. Southwest Airlines Co., the U.S. District Court for the Northern District of Texas held that female allure and sex appeal is not a bona fide occupation qualification, going as far as saying “a BFOQ for sex must be denied where sex is merely useful for attracting customers of the opposite sex, but where hiring both sexes will not alter or undermine the essential function of the employer’s business.” However, doesn’t this completely ignore the reality of market capitalism?
The Market Reality: Sex Sells
Marketing image is one of the most vital components of creating a brand. It allows a company to mold itself into the niche areas of the market that have not been covered by more general businesses. It is the difference between choosing to go to Hooters over Buffalo Wild Wings despite the same menu items. In other words, the experience can sometimes be the determining factor for consumers. In reality, sex sells. Sex appeal is, without question, a business necessity that marketing companies use constantly to catch the eye of members of both sexes. Yet, this market reality continues to be ignored.
In the early-to-mid 90s, the Equal Employment Opportunity Commission (hereafter “EEOC”) went after Hooter’s hiring practices for discriminating against men but dropped its investigation after Hooters launched a powerful public campaign. However, in 1993, three men in Chicago filed a class-action lawsuit against Hooters on behalf of all men that were denied hosting, bartending, or serving jobs with the restaurant between 1990 and 1997. Hooters ended up settling the lawsuit for a whopping $3.75 million and an agreement to open some gender-neutral positions in its outlets, though still refusing to allow men to apply for serving positions. This was just the beginning.
In 2008, Razzoo’s, a Texas-based Cajun food restaurant chain, paid $1 million to settle a sex discrimination suit by the EEOC for refusing to hire or promote men to bartender positions. In 2009, Lawry’s, a California-based restaurant, settled with the EEOC for $1,025,000 for failing to hire men into food server positions, eliminating a tradition dating back to 1938. In 2015, Ruby Tuesday paid $100,000 to settle an EEOC sex discrimination suit for denying two male employees the opportunity to work as servers in a Utah location. In 2019, Buffalo Wild Wings settled for $30,000 for refusing to hire males into bartender positions. Later in 2019, Burgers & Beer, a Southern California food chain, agreed to pay $150,000 for disqualifying male applicants and employees from serving positions based on their sex.
Adam & Eve Sued For Only Hiring Eve
An interesting case emerged in late 2019 in the Eastern District of North Carolina possibly effecting a particularly niche area of the market—sex toys. A male applicant alleged that Adam & Eve, a lingerie and sex toy company headquartered in Raleigh, NC, refused to hire him and other similarly situated male applicants based on their sex. Adam & Eve has a policy of not hiring men for sales positions. This policy is understandable since roughly 60% of females admitted to owning a sex toy (as opposed to around 40% of men). We must also take into account that Adam & Eve makes a huge portion of their sales online, where there is no face-to-face interaction with a store employee. When an individual goes to actual stores, they are going for the experience, the novelty, and the excitement. If Adam & Eve so chooses to create this experience via female employees, this should be their choice; the market will decide if that is a good or bad idea.
If a male does not fit a company’s criteria for employment, it does not hurt him by not getting a job because it was never his to have in the first place. No one is entitled to a job by virtue of existing. This undercuts the entire free-market economy. If a restaurant is excessively crude, inconsiderate, vile, or grotesque, the market will remove it from existence via consumers not spending money at it. However, this is a double-edged sword—following this logic to its natural end would suggest that women should not be forced to be hired for positions in masculine niche markets, whatever they may be. For example, one can only imagine how most women—not saying all women—would feel if the Chippendales were forced to include females in their performances.
We Should Not Turn A Blind Eye to These Intrinsic Differences But Instead Honor and Appreciate Each Other For These Very Differences
In conclusion, allowing an employer to choose its employees on the basis of sex is not about creating a Billie Jean King vs. Bobby Riggs “battle of the sexes” style workforce – this only pertains to those niche markets that base their theme on certain sex-based characteristics. Each sex, both male and female, is unique and distinct in their own way. We should not turn a blind eye to these intrinsic differences but instead honor and appreciate each other for these very differences. Ignoring sex appeal as a bona fide occupational qualification and business necessity, particularly in the hospitality and service industries, fails to adhere to the reality of the market and deeply disrespects market creativity.