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January 1998
Volume 16, Number 1

Selecting Targets
by Ralph Reiland

Everyone knows about the class-action lawsuit against Hooters, the restaurant featuring waitresses in shorts and tight t-shirts. In the settlement, Hooters paid $2 million to the men who were denied the opportunity to serve as Hooter Girls, another $1.75 million in lawyer's fees, and created three new "gender-neutral positions."

Rough treatment, indeed. But think about this mystery. At strip clubs for men (which litter most major cities) or for women (Chippendales is a booming chain), there is apparently no threat of discrimination lawsuits. Lawyers don't attempt to solicit plaintiffs charging discrimination, yet there is clearly job discrimination going on at these places.

Curious about why, I called the EEOC in Washington, D.C.

"The issue is whether you're putting on a show or serving food," explained this spokesman who requested anonymity. "The courts look at the essential nature of a business. Hooters, all along, portrayed itself as a restaurant, not a sex business."

A little background. Title 7 of the Civil Rights Act of 1964 makes it illegal to discriminate on the basis of race, color, sex, religion, or national origin. In other words, hiring only blacks or women or Catholics or Mexicans is a federal crime.

But here's where it gets tricky: a bureaucrat or a court can grant a BFOQ, a "Bonafide Occupational Qualification," to cover a discriminatory practice. What is and isn't a BFOQ is up to the government.

"In defending themselves against a lawsuit claiming gender discrimination," said the spokesman, "Hooters claimed that since they were providing vicarious sexual recreation, female sexuality was a BFOQ, but all along they were primarily a food business."

Within the EEOC paradigm, then, Hooters was considered too mainstream, too upright, too legitimate, to be permitted to discriminate. If Hooters had wanted to avoid a civil rights lawsuit, and save $3.75 million, it should have dimmed the lights, bared the waitresses, and cut the menu down to nuts and nachos. To have flown under the government's radar screen, Hooters should have been more titillating.

"There's some flexibility with BFOQs in gender cases," said the spokesman. "In Texas, for instance, a court granted a BFOQ for an exclusive dress shop to hire only female sales clerks. The store testified that their clerks were required to assist customers in the changing rooms "buttoning up, fetching dresses." It's a good thing too; otherwise the store could have been bankrupted for violating civil rights laws.

With race, it's a different story. "I've never seen a BFOQ on race," he said. It's obvious that a store in an all-white community can't hire only whites. But what about an inner-city drug program seeking only blacks to work with young black males? Illegal. A black Baptist church looking for a black minister? Illegal. A police department seeking Chinese officers to infiltrate a Chinese gang? Illegal.

Elaborating on this strange principle, the spokesman explained further: "In a dinner theater where the actors double as servers, it's permitted to advertise for a female server if Juliet is also going to be waiting tables." And what if a dinner theater is running a show about slavery and needs blacks to fill the spots. Can the producer advertise for black waiters? Illegal.

What about the mom-and-pop ethnic restaurants that thrive up the block from the EEOC? In one Ethiopian restaurant, all waiters are young, black, male, and Ethiopian. Greek and Iranian eateries are the same. What about gay coffee houses where there are no straight servers?

All illegal, he says, every one "ripe for a lawsuit." These lawsuits are selectively applied, of course. If you're a target, you know it, unless you know the rules. The more who know the rules, the more we'll see waiters or waitresses serving without clothes, all the better to please the bureaucrats at the EEOC.

The ironic result is that, in the name of diversity, the EEOC is saying that every staff must look the same, unless the business makes the sexual composition of its staff its central service. Wouldn't freedom of association be a better alternative for everyone?

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Ralph Reiland teaches economics at Robert Morris College.

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