The Breastaurant’s Essence and Regulatory Raison D'être | LinkedIn 10/11/17, 5:03 PM The Breastaurant’s Essence and Regulatory Raison D'être Published on October 8, 2017 Edit article | View stats David Paster Principal Consultant with Yarborough Planning, LLC 66 6 0 1 5 articles Lounging around the house, eating Hooters™ take-out wings, delicately wiping excess “3 Mile Island” sauce from smothered digits with a fine linen cloth all the while watching a Sex in the City TBS Marathon is a scene more absurd than, as the French say, “Je ne sais quoi”. Forcing down Hooter’s wretched wings down one’s gullet only is reasonable if the compensatory presence of the essence of Hooters, “delightfully tacky, yet unrefined” fairer sexed staff is present. Hooters is no longer the only sweater stuffer in the “breastaurant” chain “eatertainment” business, with such emulators as Twin Peaks™, Tilted Kilt™, RCI Hospitality’s Bombshells™, the Heart Attack Grill™ and Missouri’s own, Show Me’s™. The essence of what Hooters™ was and is, as a legacy brand, is based on the suspension of a concept of egalitarian sexes. Rather, Hooters™, like other sensually hedonistic and libertarian enterprises prior, has found a legal means to not hire individuals who do not meet the parameters that comprise the essence of the brand. The labor law caveat is the Bona Fide Occupational Qualification (BFOQ) construct. According to Dan Brown’s piece, “Hospitality establishments such as bars, restaurants, https://www.linkedin.com/pulse/breastaurants-essence-regulatory-raison-dêtre-david-paster/ Page 1 of 6 The Breastaurant’s Essence and Regulatory Raison D'être | LinkedIn 10/11/17, 5:03 PM and casinos have successfully used exceptions to discrimination laws to capitalize on sex appeal while still remaining within the bounds of the law… A leading case considering the BFOQ defense as applied to alleged sex discrimination, Int'l Union v. Johnson Controls, Inc., 499 U.S. 197 (1991), interpreted the defense narrowly. Specifically, the United States Supreme Court held that an employer may properly use the BFOQ defense only if sex: (1) relates to the "essence” or "central mission” of the employer's business, and (2) is objectively and verifiably necessary to the employee's performance of his or her job tasks and responsibilities. Int’l Union, 499 U.S. At 201” (Brown, 2012). The essence and central mission of Hooters is to serve mediocre Americans mediocre food-like product, with for lack of a better term, a bit of a 1970s style, Aaron Spelling quasi-mastered, “Jiggle Show”. A contemporary job description for the Hooters™ Casino actually utilizes the codified term in its job description and reads as follows: As everyone knows, the Hooters Girls are the main attraction at any Hooters property and the essence of our brand. As a Hooters Girl, your responsibility will be to represent one of the most recognizable and glamorous brands known worldwide. In this particular role as a Hooters Girl Casino Dealer, you will deal popular table games to the guests, making sure they have the best casino experience! You will make relationships with valued gaming guests and market our gaming products. This position is also responsible for the promoting of special events and promotions on the casino floor. The essence of the job is based on socially acceptable female sex appeal. It is also required that the Hooters Girl attends in and participates in company sponsored promotions to help ensure the success of our brand. (Hooters Girl Dealer, 2012) It turns out that Russian dressing can spoil the essence of “socially acceptable female sex appeal”. While not the sole case, the most famous recent attempt at a jury awarded lottery was with Mr. Grushevski. “On February 5, 2009, Nikolai Grushevski, a man who allegedly applied for and was denied a food server position at a Hooters restaurant in Corpus Christi, Texas, filed a gender discrimination class action lawsuit against the restaurant chain. Grushevski v. Texas Wings, Inc., C.A. No. 09-cv-00002 (S.D. Tex. 2009). Grushevski alleged that the on-duty manager told him that "Hooters, locally and nationally, would not hire males for waiter's positions," and Grushevski argued that he was "denied a waiter's position because of his gender in violation of Title VII." (Complaint, P 11). Grushevski is correct that that the exclusive hiring of women, on its face, violates Title VII's prohibition against sex discrimination. However, as explained, the bona fide occupational qualification ("BFOQ") exception could apply and, if so, would allow Hooters to avoid the proscriptions of Title VII despite the apparently discriminatory practice.” (Brown, 2012) https://www.linkedin.com/pulse/breastaurants-essence-regulatory-raison-dêtre-david-paster/ Page 2 of 6 The Breastaurant’s Essence and Regulatory Raison D'être | LinkedIn 10/11/17, 5:03 PM Jurisprudence was built upon from the very club where uber-feminist Gloria Steinem went “undercover” to write I was a Playboy Bunny. The New York Human Rights Appeal Board found that being female was a BFOQ for the position of Playboy Bunny (“Bevertainers” half a century before their time) at the Playboy Club, “finding the purpose of the job was to titillate and entice men and that female sexuality was reasonably necessary to achieve that purpose. See St. Cross v. Playboy Club, Appeal No. 773, Case No. CFS22618-70 (New York Human Rights Appeal Board, 1971)” (Brown, 2012). In other words, there are elements that comprise a facility’s essence or core that cannot be practically substituted. To have women as bunnies was reasonable. Silly rabbit Grushevski and/or his attorney should have thought through their attack with deeper deliberation. Still, and as crazy as it might seem, Gruchevski was not, as eluded, the first person, nor will he be the last, to think of this ploy. Filed On February 5, 2009, Gruchevski’s claim seeks an injunction to stop Hooters™ from “discriminating against male applicants for the [server] position,” as well as an unspecified amount of money, including emotional and punitive damages. According to the New York Employment Lawyer Blog, “The claim challenges an 11- year-old agreement, in which Hooters paid $3.75 million in a 2007 employment discrimination class action suit settlement. Although Hooters™ agreed to create gender- neutral positions such as kitchen staff and bartender positions, the 1997 settlement allowed Hooters™ to continue to exclusively hire women as servers. The current suit alleges that the adopted policy remains discriminatory, and even though Hooters™ servers are referred to as “Hooters Girls,” the positions should not be limited to women. (Schwartz & Perry, 2009). However, it is not just the men who are charging ahead for the quick buck to buy a bucket of long neck beers for their “bros”. For a change of pace, an already employed waitress is suing for, not the expected sexism, but wait for it….weight discrimination. There has been a long tradition in the hospitality industry of foregoing first amendment protected manifestations of personal expression (e.g., tattoos, mustaches, long hair, excessive body jewelry, beer bellies – Bill Harrah weighed each of his employees every day etc.) to conform to normative industry standards. Chris Parker’s writes, “As an employee who regularly wears a tight tank top and tighter short shorts, the Hooters girl in question is thinking about a weight discrimination lawsuit. Michigan’s general anti-discrimination law covers weight, as well as the categories usually covered: race, gender, national origin, religion, etc. (It also covers height.) Therefore, a weight discrimination lawsuit is possible.” (Parker, 2010). Successful “breastaurants” rely on one key differentiating variable, which is the https://www.linkedin.com/pulse/breastaurants-essence-regulatory-raison-dêtre-david-paster/ Page 3 of 6 The Breastaurant’s Essence and Regulatory Raison D'être | LinkedIn 10/11/17, 5:03 PM provision of unique work force solely comprised of generally accepted to be sensually attractive / aesthetically pleasing women acting as servers in a traditional hospitality environment of a restaurant. Dr. Daniel S. Hamermash’s salient conclusion is revealed from his scientific research as published in the book, Beauty Pays: Why Attractive People Are More Successful. Dr. Hamermash stated in an October 27, 2011 Wall Street Journal article by Sue Shellenbarger titled, “On the Job, Beauty is More than Skin-Deep,” … “Research shows that better-looking people tend to sell more products or attract more new customers” (Shellenbarger, 2011). The same personal aesthetic and commerce constructs apply for reverse-gender (e.g., “man candy”, “himbo”) scenarios such as “Chippendale” style establishments. If the business goal of a “breastaurant,” as with most revenue seeking endeavors, is to churn more business and maximize profits to the firm, then the field of hospitality should recognize the material value of hiring certain population segments (e.g., attractive women) for essence based entities as protected under labor law by the Bona Fide Occupational Qualification (BFOQ) provision(s). In summation, this author declares, “Dudes, unless you want to fully commit and go for the ‘final cut’ and then, upon reconstructive surgery recovery (and extensive hormone therapy) hula-hoop wearing stockings under infection festering nylon shorts, do not try to be Hooters girls”. As for Ms. pudgy in Michigan, empirical evidence over a vast array of peer-reviewed journals on earning power has shown that attractiveness of women counts (in terms of monetary remuneration), especially in service/hospitality/tip-based jobs. Lose a couple pounds and your income might go up from the $3.15 per hour you are making now. Also, maybe follow an analogous paradigm of not @$*@ing where you work; do not eat where you work eat. Hooters ™ food not only taste bad, but also is bad for your elastic waste band too.” SOURCES Brown.