Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate based on sex, but there is an exception if sex is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Thus, the question is whether female sex is a BFOQ for being a Hooters Girl.
Some of us may remember when flight attendants were all young, slim, unmarried, and female. Indeed, Southwest Airlines struggled during the early 1970s until it launched its "Love" campaign to appeal to the predominantly male consumer market that it served. As described by Judge Patrick Higginbotham in Wilson v. Southwest Airlines, 517 F. Supp. 292 (N.D. Tex. 1981):
Unabashed allusions to love and sex pervade[d] all aspects of Southwest's public image. Its T.V. commercials feature[d] attractive attendants in fitted outfits, catering to male passengers while an alluring feminine voice promise[d]in-flight love. On board, attendants in hot-pants [or skirts] serve[d] "love bites" (toasted almonds) and "love potions" (cocktails). Even Southwest's ticketing system feature[d] a "quickie machine" to provide "instant gratification."Despite the great success of the Love campaign, Judge Higginbotham concluded that Southwest was not justified in hiring only women to be flight attendants. Judge Higginbotham distinguished the position of a flight attendant from other positions, such as a topless dancer or Playboy Bunny, in which female sex appeal is the primary service provided by the individual in the position. By contrast, a flight attendant's primary duties are not aimed at titillating male customers but at ensuring safe and efficient air travel. Promoting female sexuality may have been a convenient means for Southwest to achieve business success, but it did not rise to the level of being a business necessity as required for it to be a BFOQ.
So what about the Hooters Girl? Is the essence of so-called "breastaurants" to titillate male customers? Clearly, Hooters Girls have similar job duties to those of servers in other mid-price restaurants, such as taking your order and bringing you your food. But there are numerous mid-price establishments, so much, if not most, of the appeal in going to Hooters is presumably in being served by a Hooters Girl. Now, of course, someone might prefer one airline over another because of sexy female flight attendants, but if you need to travel from New York to L.A, your primary concern is not whether a sexy stewardess will be demonstrating how to use the oxygen mask but whether your flight is comfortable and on-time. On the other hand, if you want to go to Hooters, I'm guessing it has more to do with the voluptuousness of the Hooters Girls than the deliciousness of the mozzarella sticks. (It's hard to screw up mozzarella sticks.)
I've never been to a Hooters restaurant -- I'm waiting for Cirque du Soleil to open a bistro where I can be served baked brie by male gymnasts -- but I imagine that it might be the kind of establishment frequented by the Trump voter thumbing his nose at liberal elitism and political correctness. Make America Great Again? Hell, with Hooters and so many other choices for enjoying fried food, it's already pretty damn great.
Photo information: This is a photo of the Teton Range. It is generally believed that the Tetons were named by French explorers. Depending on which Internet source you check, "teton" means either nipple, teat, or breast.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.