Appearance based hiring: the 'bona fide occupational qualification' carveout, exploring hooters of America and Air India v. Nargesh Meerza

• Author: Ayesha Bhattacharya/Shruti Mishra
• Position: Authored by Ayesha Bhattacharya (associate at Khaitan & Co., Mumbai, India and an alumna of the WB National University of Juridical Sciences, Kolkata) and Shruti Mishra (B.A. LL.B. (Hons.) National Law Institute University, Bhopal)
• Pages: 35-71

APPEARANCE BASED HIRING: THE ‘BONA FIDE

OCCUPATIONAL QUALIFICATION’ CARVEOUT, EXPLORING

HOOTERS OF AMERICA AND AIR INDIA V. NARGESH MEERZA

AYESHA BHATTACHARYA AND SHRUTI MISHRA*

ABSTRACT

Title VII of the Civil Rights Act of 1964 permits hiring discrimination on the

grounds of religion, sex and natural origin as a bona fide occupational qualifi-

cation (BFOQ), if the same is integral to the business of the establishment. For

years, the American franchise Hooters has been subjected to various lawsuits

for its discriminatory hiring practices. This Article examines whether a restau-

rant which markets itself as a family-friendly joint can insist that its female serv-

ers must don makeup and wear sexually alluring costumes and further, justify its

discriminatory hiring practices as a “business necessity” under the BFOQ carve-

out. This Article explores the arguments raised by such employers and also

provides a comparative constitutional analysis with the discriminatory hiring prac-

tices in the airline industry, addressed by the Indian Supreme Court in the land -

mark case of Air India v. Nargesh Meerza. This Article argues that sex is not a

permissible BFOQ for servers in the hospitality industry as the service provided by

a “Hooters Girl” does not form the core of the Hooters business and that across

jurisdictions, customer preferences cannot be used to justify discriminatory

employment policies when sex of the employee is merely tangential to the business.

INTRODUCTION .............................................. 36

I. THE HOOTERS CONTROVERSY: DOES BFOQ A PPLY?. . . . . . . . . . . . . . . 37

A. TITLE VII AND THE BFOQ C ARVEOUT .................... 37

B. UNDERSTANDING APPEARANCE BASED DISCRIMINATION . . . . . . . . . 39

C. HOOTERS AND THE BFOQ CARVEOUT ..................... 41

D. WHEN IS SEX-BASED BFOQ PERMISSIBLE?...... ........... 44

E. CUSTOMER SATISFACTION AS A BFOQ DEFENSE: COMPARATIVE

ANALYSIS ......................................... 47

F. HOOTERS LAWSUITS .................................. 52

II. HOOTERS AND SEXUAL HARASSMENT LAWSUITS .................. 54

III. AIR INDIA V. NARGESH MEERZA .............................. 57

CONCLUSION ............................................... 70

* Authored by Ayesha Bhattacharya (associate at Khaitan & Co., Mumbai, India and an alumna of

the WB National University of Juridical Sciences, Kolkata) and Shruti Mishra (B.A. LL.B. (Hons.)

National Law Institute University, Bhopal). © 2022, Ayesha Bhattacharya and Shruti Mishra.

35

INTRODUCTION

“Being a Hooters Girl is an honour bestowed upon only the most

entertaining, goal oriented, glamourous and charismatic women”

—from the Hooters website.

1

Careers, HOOTERS, https://perma.cc/3CY4-NYME (last visited Dec. 14, 2022).

Appearance discrimination with respect to the workplace may be defined as

the preference for a more attractive candidate, regardless of whether or not such

appearance actually forms part of the job description, a problem which is some-

times referred to as “lookism.”

2

Lookism, MERRIAM WEBSTER, https://perma.cc/GJR2-R6TL (last visited Dec. 14, 2022).

Over the past few decades, the American food

chain Hooters has gained fame for advertising its female servers in a sexually

alluring way to entice customers. Hooters has also been the subject of various

lawsuits which allege that the restaurant engages in gender-biased hiring—by

reserving the position of servers for only females.

3

See Paul A. Driscoll, Hooters Settles Gender Discrimination Lawsuit, Gets to Keep Waitresses,

AP NEWS (Sept. 30, 1997), https://perma.cc/YX7P-972H.

Based on several statutory pro-

visions, discriminatory hiring is illegal.

4

Michael Aamodt, Really, I Come Here for The Food: Sex as a BFOQ for Restaurant Servers, 54

TIP 3 (2017), https://perma.cc/V4WJ-MTN9 (discussing cases that have raised the bona fide

occupational qualification as a defense including lawsuits filed against Hooters).

Surprisingly, Hooters has been oddly forthcoming about and proud of being a

‘breastaurant,’

5

A breastaurant is a sexually objectifying restaurant environment, which promotes, intensifies and

sanctions the treatment of women as objects of sexual desire. See Candace Braun Davison, 11

‘Breastaurants’ That Make Hooters Seem PG, DELISH (Jul. 29, 2016), https://perma.cc/J2ZM-87SH.

judging by the highly problematic marketing and advertising

strategy it employs. Breastaurants signal the advent of a new breed of restaurants

where servers dress provocatively

6

to sexually lure customers.

7

‘Breastaurants’ with a ‘View’ Booming in Struggling US Dining Industry, INDIAN EXPRESS (July

27, 2012), https://perma.cc/TYT5-6H9P.

Such establish-

ments make the feminized labor of the service industry visible in a way that now

reads as distasteful.

8

Sascha Cohen, The Rise and Fall of the American Breastaurant, DAILY BEAST (Sept. 17, 2018),

https://perma.cc/X9LZ-Y9FY.

These restaurants endorse traditional gender roles by cater-

ing to a male, predominantly middle-aged clientele

9

Wil Fulton, The Strange, Resilient Story of the ‘Breastaurant,’ THRILLIST (Mar. 2, 2016), https://

perma.cc/D2Y7-D9Y5.

and employing exclusively

female waitstaff.

10

Dawn Szymanski & Chandra Feltman, What’s the psychological toll of being a Hooters

waitress?, CONVERSATION (Aug. 31, 2015), https://perma.cc/7E2S-T2KP.

The main question this Article seeks to address is whether an

employer has the right to restrict certain positions solely to women and moreover,

dictate the appearance and grooming standards for such employees.

This Article discusses the exception to Title VII of the Civil Rights Act of

1964, which permits hiring discrimination on the grounds of religion, natural ori-

gin and sex: bona fide occupational qualifications (BFOQ) that are integral to the

1.

2.

3.

4.

5.

6. Id.

7.

8.

9.

10.

36 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:35

functioning of a business.

11

See generally Stephanie Scott, When Is It Legal for an Employer to Discriminate in Their Hiring

Practices Based on a Bona Fide Occupation Qualification, U. CIN. L. REV. (2016), https://perma.cc/

NG4K-23PG.

While the BFOQ carveout discusses different catego-

ries of protected classes, the focus of this Article is limited to sex-based discrimi-

natory hiring practices. It also probes whether the business concept propagated

by Hooters through provocative uniforms, gestures, and remarks encourages and

fosters a ground for sexual harassment, and it questions whether it exposes young

children to the objectification of women.

12

See generally Lauren B. Moffitt & Dawn M. Szymanski, Experiencing Sexually Objectifying

Environments: A Qualitative Study, 38 COUNSELING PSYCH. 6 (2010), https://perma.cc/G8WT-SR4T.

As long as Hooters continues to mar-

ket itself as a family-friendly restaurant and hosts a children’s menu, it has no

credibility to claim that female servers donning make-up and sexually alluring

costumes are a business necessity or an integral part of its business.

13

See Irin Carmon, The Battle Against Hooters: What About The Children?, JEZEBEL (Dec. 17,

2010), https://perma.cc/J87G-38T6.

Further, this

Article explores whether statutory provisions such as the BFOQ carveout, which

are used as a silver bullet by employers to shield themselves from their appear-

ance based discriminatory hiring practices, should be narrowly construed to limit

their applicability to businesses which mainly sell looks and not other products or

services.

In this regard, the Article briefly outlines the legislative history of Title VII and

a judicial interpretation of the BFOQ defense to gender specific employment

decisions. It then turns to an analysis of the Supreme Court of India’s landmark

verdict in Air India v. Nargesh Meerza. Nargesh Meerza is widely considered to

be a monumental judgment in Indian jurisprudence as the Supreme Court dealt

with the issue of sex-based discrimination in employment related matters for the

first time.

14

The focus of this Article’s analysis is the judgment’s take on (1) sex

discrimination in the airline industry and (2) the role of customer preferences as

defense for sex discrimination. This analysis shall be juxtaposed with United

States (U.S.) jurisprudence on the tenability of ‘customer preferences’ as a defense

for sex discrimination.

In this regard, the Article provides a comparative analysis of hiring discrimina-

tion prevalent under two jurisdictions, namely, India and the U.S., and discusses

whether customer preferences can be used to hold that sex is a permissible basis

for hiring in certain establishments.

I. THE HOOTERS CONTROVERSY: DOES BFOQ APPLY?

A. TITLE VII AND THE BFOQ CARVEOUT

Title VII acts as a “stringent barrier to discriminatory acts by prohibiting acts

of gender discrimination, which historically has been an obstacle for women

11.

12.

13.

14. Air India v. Nargesh Meerza, 1981 AIR 1829 (1981) (India).

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