1. Can customer preference be used to support a restaurant's decision to hire only male waiters? What must an employer demonstrate to justify using gender as a BFOQ for hiring?
3. Under what circumstances can an employer be held liable for a supervisor's sexual harassment of another employee? For sexual harassment by a co-worker? For sexual harassment by a non-employee?
4. When can Title VII be used to challenge gender based pay differentials for jobs that are not equivalent? Is there a difference between coverage of the Equal Pay Act and that of the pay discrimination prohibitions of Title VII? Explain your answers.
5. Are all employees entitled to take leave under the Family Medical Leave Act? Explain.
Can customer preference be used to support a restaurant's decision to hire only male waiters? What must an employer demonstrate to justify using gender as a BFOQ for hiring?
The famed Hooters case of 1997 showed the chain paying out a decent settlement to a man who wanted a job as a waiter, though of course, knowing that the Hooters Girls made the chain famous. The act of paying out the $4 million was an admission that the legal staff of the chain could not defend the action. They also agreed to have certain gender neutral jobs like bartenders, etc.
When a sex discrimination suit is filed, the burden of proof is on the employer, which, of course, violates the "innocent until proven guilty" idea at the root of Common Law. Nevertheless, the employer must prove that gender had nothing to do with the hiring. Of course, in this particular case, gender had everything to do with it, despite the fact that it is the customer base rather than the employer.
Title VII, k1(i) states that gender "discrimination" is permissible only when the employer can "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." And in section e, gender has to be an aspect of an "occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."
In a similar case, in Diaz v. Pan American World Airways (1971) showed that when the courts do not consider gender an "operational qualification," the suit can be successful. In this case, it was for a stewardess position, where Pan Am only hired women for that position. The court explicitly rejected "consumer preference" as a reason for Pan Am's position. Hence, Mr. Diaz won. The court held that it may be true that female stewardesses might be more reassuring to fliers, and Pan Am presented dozens of papers showing an overwhelming preference for female employees in that capacity, from both men and women. Yet, the court rejected Pan Am's fairly compelling argument. The basis on which Mr. Diaz won is that an airline is supposed to ferry people from point a to point b. Hence, any kind of psychological edge that female employees will provide is not relevant, and hence, Pan Am was out of luck.
Now, "customer expectations" is different from "customer preference." Expectations is more concrete, since it has everything to do with customer loyalty, where a mere preference" does not.
Hooters has settled several cases out of court that permitted them to continue to hire only "Hooters Girls," which in the very name suggests a gender requirement. Since they called their waitresses by that title, they got away with it, until 1997.
US Court of Appeals of the Fifth Circuit. Diaz v Pan Am (1971), 44 f 2nd 385
Must an employer offer paid pregnancy leave for employees under Title VII? How do the Pregnancy Discrimination Act provisions of Title VII affect employment benefits?
The gender and family issues for Title VII and other legislation are given.