Hooters bfoq

MGT229 – Lesson 9 ‒ Case Study

Hooters Restaurants

Background Information Hooters restaurants are known for spicy chicken wings, the Owl mascot (i.e., “Hooters”) and Hooters’ girls, dressed in, as the company describes it, “white Hooters tank top, orange shorts, suntan hose, white socks, solid white shoes, brown Hooters pouch, name‐tag and of course ... a smile!” Hooters only hires female servers and readily admits that “the element of female sex appeal” is part of its business, but no more so, it argues, than the “socially acceptable” Dallas Cowboy Cheerleaders, Sports Illustrated swimsuit models, or Radio City Rockettes. Hooters states,

The ‘nearly world famous’ Hooters Girls are the cornerstone of the Hooters concept, and as part of their job, these all‐American cheerleaders make promotional and charitable appearances in their respective communities. Hooters hires women who best fit the image of a Hooters Girl to work in this capacity.

Hooters provides detailed guidelines on its Web site about hair, eyes, skin, makeup, and exercise. Consistent with maintaining the image of a Hooters Girl, all of its female wait staff must attend image classes and pass an image quiz. Current Issue Hooters is being sued for discrimination by two waitresses from Roseville, Michigan, Cassandra Smith and Leeanne Convery. Smith received positive performance evaluations and was promoted to shift supervisor. But at her last evaluation, the 5'8" Smith says she was advised to lose weight and join a gym, despite dropping from 145 pounds, when hired, to her current 132.5 pounds. She says she was given 30 days to lose more weight, and when she didn’t, was fired. Says Smith, “I had these two women from [Hooters headquarters in] Atlanta telling me I had 30 days to make an improvement, and I didn’t know what I’m supposed to improve. I was proud of myself, working out the last months, losing 10 pounds to get ready for my summer body. For that (phone call) to happen, it was almost a slap in the face.” Convery, who is 4'11" and weighs 115 pounds, says she was also placed on weight probation and then fired, despite losing 15 lbs. Hooters Response In a written statement, Hooters said, “No employee in Michigan has been asked to lose weight and … the company does not enforce any weight requirement.” Company spokesperson Mike McNeil said, “We never mentioned weight. We never mentioned pounds. We never mentioned scales.” But, he said, “We have an image to uphold. We’ve been upholding it for 27 years. Hopefully, we'll be doing it for another 27 years.” Moreover, he said, “You’re hired based on the image you have when you walk through the door.” Additional Information Discrimination is treating people differently in hiring, firing, promotion, training, and compensation decisions because of nonperformance related criteria. For example, age discrimination is treating people differently because of their age. Age discrimination typically occurs when older workers are fired because of their age, or not hired, promoted, trained, or paid because of their age, rather than their potential or performance. The chapter discusses age, sex, race and ethnicity, and disability‐based

discrimination in detail. Despite good efforts and intentions, these kinds of discrimination still occur in workplaces, but to a lesser degree than in the past.

Federal law, based on Title VII of the 1964 Civil Rights Act, says that it is not unlawful to hire and employ someone on the basis of sex, religion, or national origin. Notice, however, that Title VII doesn’t say anything about weight. For instance, a professional woman wrote to the legal advice column of the Wall Street Journal with this complaint, “I am a professional woman whose job at an Atlanta‐area company was terminated after only one day. The recruiter told me the owner said he didn't like me because I was overweight and had large breasts. A smaller woman with less experience was hired to replace me. Can I fight this?” Attorney Thomas Mitchell, who was consulted by the columnist, said, “What happened is wrong and unfair, but it's really hard to persuade a court that it's illegal under that context because the employer didn't replace you with a male.” Mitchell is indicating two things here. First, firing this woman because of her weight was wrong, but it wasn’t illegal because weight is not covered under federal law or state law (in this case, Georgia). Second, there would have been a legal complaint if she had been replaced by a man, but the basis of the case would have been sex discrimination and not weight discrimination.

Since the Hooters case was filed in Michigan, does Michigan law cover weight when it comes to employment decisions? Indeed, Michigan is the only state that does. In 1976, Michigan passed the Elliott‐Larsen Civil Rights Act which protects rights passed on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. More specifically, Michigan employers are prohibited from any of the following: To fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

So, under Michigan law Smith and Convery may have a case for weight discrimination. That is, under Michigan law, weight is a non‐job‐related criterion. Smith and Convery’s attorney put it this way, “All their job duties are those of a waitress. Serve chicken wings, refill salt shakers, carry mugs of beer.” In other words, weight isn’t related to how well Smith and Convery do their jobs at Hooters. So from the plaintiffs’ perspective, under Michigan law, weight clearly should not be a factor in human resource decisions.

In Chapter 11 on human resource management, the general effect of Federal employment law, which is still evolving through court decisions, is that employers may not discriminate in employment decisions on the basis of sex, age, religion, color, national origin, race, or disability. The intent is to make these factors irrelevant in employment decisions. Stated another way, employment decisions should be based on factors that are “job related,” “reasonably necessary,” or a “business necessity” for successful job performance.

The only time that sex, age, religion, and the like can be used to make employment decisions is when they are considered a bona fide occupational qualification(BFOQ). Title VII of the 1964 Civil Rights Act says that it is not unlawful to hire and employ someone on the basis of sex, religion, or national origin when there is a bona fide occupational qualification (BFOQ) that is “reasonably necessary to the normal operation of that particular business.”

For example, a Baptist church hiring a new minister can reasonably specify that being a Baptist rather than a Catholic or Presbyterian is a BFOQ for the position. However, it’s unlikely that the church could

specify race or national origin as a BFOQ. In general, the courts and the EEOC take a hard look when a business claims that sex, age, religion, color, national origin, race, or disability is a BFOQ.

  What to Do? As the judge in the case, you’ve got a number of key determinations to make. First, the women are basically arguing that being fired for being too heavy is akin to being fired because of their age, religion, sex, color, or national origin. In short, they say they’re being discriminated against because of their weight. So, if Hooters fired them because they were too heavy, is that illegal under state and federal law? Second, Hooters will claim that the image of the Hooter Girl is central to their business and consequently allows them to discipline and fire waitresses for not maintaining that image. This can be considered a bona fide occupational qualification. When a BFOQ is “reasonably necessary to the normal operation of that particular business,” personnel decisions can be made on the basis of race, color, religion, sex, or national origin. Is the Hooter Girl image, and more specifically, the weight of a Hooter Girl, a BFOQ and thus a legally justifiable reason for Hooters’ hiring, firing, and promotion decisions? Finally, Convery claims that since giving birth to her son, she has had problems maintaining her weight. In other words, having children changes a woman’s physique, making it more difficult to return to one’s pre‐baby weight. If this is true, could she possibly have a legal case on the basis of the Americans with Disabilities Act? Source: Adapted from MGMT 6 Instructor Resources, Chapter 12, Cengage Learning, 2013.

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