by Matthew A. Peterson1
Congress enacted Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination on the basis of certain protected factors such as gender.2 However, Congress provided for an exception that allows employers to discriminate on the basis of these traditionally protected attributes when the attribute “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”3 While this affirmative defense remains available to employers confronting allegations of unlawful employment discrimination, courts rarely find gender discrimination to be permissible.4 This is because employers bear the heavy burden of convincing a court by a preponderance of the evidence that such discrimination is necessary to maintain the “essence” of the particular business.5
Despite the fact that the Supreme Court has expressly noted that the BFOQ defense is a narrow exception,6 many service industry employers continue to engage in hiring policies that discriminate on the basis of sex. For example, the restaurant chain Hooters continues to exclusively hire female food servers.7 While the restaurant chain contends that gender is an appropriate BFOQ for their server positions, which purportedly promote a theme of female sexuality, no court has held that sex is a BFOQ for the Hooters server position, and Hooters has reached settlement agreements in gender discrimination suits filed against it.8 The prominence of female-only server positions remains even more pronounced in gaming industry hotspots such as Las Vegas. As Ann C. McGinley, the co-director of the University of Nevada Las Vegas Workplace Law Program, describes, Las Vegas casinos uniformly hire women to serve drinks on the casino floor in “tight-fitting, sexy” outfits.9
The widespread nature of an employment practice does not guarantee its legality. Perhaps some service industry employers continue to discriminate on the basis of gender in hiring decisions because the Supreme Court’s test for the propriety of a BFOQ remains unclear. The Supreme Court has interpreted Title VII’s statutory text stating the BFOQ must be “reasonably necessary to the normal operation of the particular business” to require a finding that the “essence”10 or “central mission”11 of a business would be undermined if the BFOQ was not accepted. However, the Supreme Court has not clearly articulated how courts should proceed in determining what constitutes the “essence” of a business.12 Additionally, the phrase “central mission” is ambiguous considering the economic reality of multifaceted businesses.
This Contribution will argue that sex is not an appropriate BFOQ for bartender positions. Since “the word ‘necessary’ in [42 U.S.C. § 2000e‑2] requires that [courts] apply a business necessity test, not a business convenience test,”13 courts should hold that the essence of a bar business does not include the promotion of female sexuality. Accordingly, requiring bars to hire male and female bartenders under Title VII will not undermine the “essence” of a bar’s business—making and distributing beverages. Such an interpretation will remain faithful to the Supreme Court’s14 and the Equal Employment Opportunity Commission’s15 determinations that the BFOQ defense is only appropriate in a narrow range of employment decisions. This interpretation prevents the Title VII exception permitting discrimination from swallowing the general rule banning it. Moreover, requiring casino bars to hire bartenders of all genders will accelerate the elimination of societal preferences for bartenders of one gender over the other.
Title VII declares that an employer may not “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”16 However, Congress codified in Title VII a narrow exception—the BFOQ—to permit employment discrimination on the basis of certain protected characteristics in particular circumstances:
Notwithstanding any other provision of this title [42 U.S.C. §2000e et seq.], (1) it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .17
When facing employment discrimination liability, employers bear the burden of persuading the court that a particular qualification is a BFOQ.18 Courts require a defendant to establish the propriety of this affirmative defense by a preponderance of credible evidence.19
The Supreme Court has emphasized that Title VII’s enacting Congress signaled an intent for courts and adjudicative bodies to narrowly interpret the BFOQ exception through its choice of language.20 Specifically, the Supreme Court noted that the modifier “occupational” restricts the exception’s scope.21 “Occupational” cannot simply mean “related to a job,” as that interpretation would make any requirement created by an employer job-related. Such a reading would reduce the word “occupational” to surplusage since the term “qualification” already captures an employer’s personal job requirements.22 Furthermore, courts have emphasized that the numerous other restrictive terms such as “certain,” “normal,” and “particular” require courts to interpret the BFOQ exception narrowly.23
The primary motivation behind the enactment of Title VII was to create a statutory foundation for the principle of non-discrimination.24 The BFOQ exception operates contrary to that motivation. Courts have expressed concerns that interpreting the BFOQ exception too broadly could lead to the exception undermining the principal purpose behind the general ban on employment discrimination.25
Unfortunately, while courts and the EEOC agree that the BFOQ exception is a narrow one, courts remain divided on which employment circumstances fall within the exception. This lack of clarity persists because the Supreme Court has interpreted the statutory text of the BFOQ to mean discrimination is only permitted if the disallowance of discrimination undermines the “essence” or “central mission” of the business,26 yet the Court has not established a clear methodology to determine a business’s “essence” or “central mission.”
A survey of Title VII case law reveals that courts most frequently deem sex a proper BFOQ when the gender of employees impacts the safety or privacy interests of the business’s audience.27 Courts are least likely to find sex is an appropriate BFOQ when the promotion of sex appeal is tangential to the sex-neutral essence of a business.28
Courts have drawn a distinction between businesses that hire women to sell sex and businesses that use sex appeal to sell another product or service. Courts look unfavorably upon the latter class of businesses when they argue that the essence of their business would be undermined without the discriminatory hiring practices.29 Sex BFOQ cases can be grouped into three main buckets. The first bucket involves jobs in which the physical characteristics unique to a particular sex are essential to the performance of a job.30 The next group of sex BFOQ cases involves jobs in which sexual entertainment is the exclusive good for sale, such as the hiring of strippers and Playboy centerfold models. Courts have held sex is a valid BFOQ for these jobs.31 The third grouping involves instances where employers seek to sell a nonsexual good or service alongside the promotion of sexual arousal. Courts consistently hold that cases falling in this bucket of sex discrimination do not merit the BFOQ defense.32
When it comes to providing services, such as bartending, there is no clear answer as to whether the promotion of female sexuality alongside the distribution of food and drink is a part of the “essence” of the business or a “tangential” element whose absence would leave the “essence” unharmed. The two competing lines of case law can be classified as “authenticity preservation” cases and “rejection of catering to customer preferences” cases.
Courts uniformly agree that they should generally not consider customer preferences when defining the “essence” of a business.33 For example, in the Fifth Circuit case Diaz v. Pan American Airways, the court rejected the airline’s discriminatory hiring scheme that only recruited female flight attendants.34 While the airline presented evidence that customers indicated preferences for female flight attendants, and testimony from a psychiatrist that female flight attendants better catered to the psychological needs of passengers, the court rejected the notion that gender played a role in the “essence” of the airline business.35 Instead, the court determined that the essence of the airline business is safely transporting customers from one destination to another, which would not be undermined by hiring flight attendants of all genders. 36
Similarly, in Fernandez v. Wynn Oil Co., the Ninth Circuit was confronted with an international marketing agency which conducted business with South American clients who indicated they did not want to work with a female marketing partner.37 While the district court found sex to be a BFOQ on the basis of testimony from the clients that they would refuse to work with a female marketing partner, the Ninth Circuit overturned the decision, noting that stereotyped customer preferences cannot justify a sexually discriminatory practice because promoting a woman into the marketing role would not destroy the essence of a marketing business.38 The Ninth Circuit placed an emphasis on the EEOC regulation, noting that customer preferences generally cannot inform the “essence” of a business—they can only support BFOQ propriety in instances of maintaining authenticity.39
On the other hand, courts are allowed to consider customer preferences for an authentic or genuine experience.40 The New York State Human Rights Division stated in dicta that sex was a BFOQ when hiring Playboy Bunnies, female employees at Playboy Clubs who brought customers drinks while serving as “eye candy.”41 The Playboy Bunny exception aligns with how courts commonly accept that sex is an appropriate BFOQ for an actor or actress role.42
The difficult question that courts must confront is how far to extend this “authenticity” exception to permit discrimination on the basis of sex.
Ultimately, courts should not deem sex a BFOQ for bartending positions, regardless of whether a bar has bartenders serving drinks on a casino floor, in a bar area, or inside a cabaret show.
Casinos and bars with only female bartenders will attempt to liken the bartender position to the role of an actress, arguing that hiring male bartenders will destroy their customers’ authentic entertainment experience. Bar owners will argue that patrons do not come to a bar just to buy drinks—instead they come for an experience. If customers merely wanted to purchase alcohol, they would purchase beverages at a local liquor or grocery store, avoiding bars substantial upcharges. Some bars attract customers by creating an entertainment experience revolving around sports, while other bars entertain customers by promoting female sexuality.
Casino owners will have an easier time likening their bar services to the entertainment industry because of the multi-faceted entertainment experience of casinos, in which patrons consume alcohol while gambling, clubbing, or relaxing at a pool. Additionally, casinos will likely argue that while a bartender only plays a minor role in the creation of an authentic sexualized entertainment experience, the authenticity of an experience can still be destroyed by secondary roles. For example, if a movie director casts Angelina Jolie to star in a film as a high school teacher, but then hires forty-year-olds to portray some of her students, the authenticity of the movie will be undermined, even by these minor roles.
However, if courts allow bars to maintain discriminatory hiring practices by claiming they are promoting an authentic entertainment experience, it is unclear how courts would maintain the force behind Title VII’s prohibition on gender discrimination in employment practices. If a bar can successfully claim protection from discrimination liability by claiming authentic entertainment as a part of its business “essence,” then what is to stop bowling alleys and coffee shops from claiming they not only provide goods and services but also entertainment centered on female sexuality?
Such an interpretation of Title VII would be inconsistent with the Act’s principal purpose and statutory text, which the Supreme Court has emphasized require a narrow interpretation.43 The Playboy decisions involving women dressed up as Playboy Bunnies while serving drinks were decided by state adjudicatory bodies as opposed to the Supreme Court or federal circuit courts, and are not binding legal precedent. Furthermore, the Playboy Bunny roles are distinguishable from that of a traditional bartender as the Playboy Bunny was the namesake of the club and an already established modeling accolade. Therefore, courts should not extend the Playboy Bunny logic to bartender roles. The authenticity of the entertainment experience in a bar or casino is not dependent on the bartenders in the manner that the Playboy Club experience was on the bunnies. As a result, the essence and authenticity of a bar or casino will not be undermined by requiring them to hire bartenders of any gender.
Instead, courts confronted with gender discrimination charges for bartender positions should follow the approaches taken in the flight attendant cases and reject the propriety of a BFOQ. In particular, courts should adopt the following analytical framework:
Diaz and its progeny establish that to recognize a BFOQ for jobs requiring multiple abilities, some sex-linked and some sex-neutral, the sex-linked aspects of the job must predominate. Only then will an employer have satisfied Weeks’ requirement that sex be so essential to successful job performance that a member of the opposite sex could not perform the job.44
A bartender’s principal responsibilities include the making and distribution of drinks, as opposed to promoting sexualized entertainment. A bartender is no longer a bartender if she does not make and serve drinks. However, a bartender is still a bartender when not providing sexualized entertainment. That is why courts should find that promoting sex-specific entertainment is not included in the “essence” of a bar business.
In 2017, the EEOC filed suit against Sammy’s Gentlemen’s Club in Florida for the club’s decision to only hire female bartenders in its strip club.45 In December 2019, the EEOC announced the club would pay $20,000 and end its discriminatory bartender hiring practice, noting that the conduct violated Title VII: “barring an entire gender—half the population—from a bartending job is certainly not one of those exceptions.”46 If the federal agency in charge of enforcing Title VII finds that a strip club does not require exclusively female bartenders to maintain the club’s authenticity and essence, then it seems unlikely that it would find a bar or casino can successfully argue a BFOQ defense for discriminatory hiring on the basis of gender to provide sexualized entertainment.
Title VII was enacted in 1964, a time in which many members of society held discriminatory preferences. The passage of the general bar on discrimination with a narrow exception was meant to help usher the elimination of these unnecessary discriminatory preferences from society. When courts end discriminatory hiring practices, they prevent businesses from catering to them. As a result, this provides the opportunity for individuals with discriminatory preferences to interact with businesses that do not discriminate and hopefully realize through those interactions that their preexisting preferences are unfounded and unnecessary. If courts prevent bars from discriminating on the basis of gender today, in time it is likely that many individuals who currently prefer female bartenders will come to realize the gender of their bartender does not meaningfully affect their enjoyment of bar experiences.
Maintaining the Supreme Court’s narrow interpretation of the BFOQ exception will open up jobs discriminatorily denied to men in some circumstances and new jobs discriminatorily denied to women in other circumstances. The text of Title VII commands a narrow interpretation of the exception, ensuring this exception does not swallow the rule. While it is important to allow performance providers—e.g., movie studios, Broadway shows, and cabaret shows—to maintain authentic performances through gendered casting, such necessity of discrimination should not apply when bars and casinos hire bartenders. The “essence” of a bar is the making and serving of drinks—tasks that individuals of all genders can perform.
1. Matthew Peterson is a J.D. Candidate (2021) at New York University School of Law. This piece is a commentary on the problem presented at the 2020 Frank A. Schreck Gaming Law Moot Court Competition hosted by the University of Nevada, Las Vegas School of Law. The question addressed whether a casino can lawfully make female gender a qualification for a bartender position that serves drinks both in a bar and an adjacent cabaret theater. The legality of such a hiring scheme turns on whether or not gender is a bona fide occupational qualification (“BFOQ”), an exception to Title VII’s general prohibition on employment discrimination.
2. Courts tend to use the terms “sex” and “gender” interchangeably in the Title VII context, and this Contribution will do so as well.
3. 42 U.S.C. § 2000e‑2(e).
4. See Teamsters Local Union No. 117 v. Washington Dep’t of Corr., 789 F.3d 979, 987 (9th Cir. 2015) (“In light of [the] demanding legal standards, BFOQs are few and far between.”).
5. Henry v. Milwaukee Cty., 539 F.3d 573, 579–80 (7th Cir. 2008).
6. See Int’l Union v. Johnson Controls, 499 U.S. 187, 201 (1991) (“The wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations.”); Dothard v. Rawlinson, 433 U.S. 321, 333 (1977) (“[T]he virtually uniform view of the federal courts [is] that [the BFOQ] provides only the narrowest of exceptions to the general rule requiring equality of employment opportunities.”).
7. See Jacob Shamsian, The Strange Loophole that Lets Hooters Hire Only Female Servers, Business Insider (Sept. 13, 2015), https://www.businessinsider.com/how-can-hooters-hire-only-women-2015–9.
8. See id. (noting that Hooters settled a class-action lawsuit for $3.75 million and subsequently settled another gender discrimination lawsuit while keeping its exclusive female-server hiring practice in place).
9. See Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. of Gender L. & Pol’y 257, 257 (2007) (“Las Vegas casinos exclusively hire women to serve cocktails on the casino floor, dressing them in tight-fitting, sexy, uncomfortable costumes and high heels.”).
10. See Dothard, 433 U.S. at 336 (interpreting 42 U.S.C. § 2000e‑2(e)).
11. See Johnson Controls, 499 U.S. at 204 (quoting W. Air Lines v. Criswell, 472 U.S. 400, 413 (1985)).
12. See Kimberly A. Yuracko, Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination, 92 Calif. L. Rev. 147, 152 (2004) (emphasizing that the process of determining the “essence” of a business is “both facially unclear and radically undertheorized by the courts”).
13. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971).
14. See Johnson Controls, 499 U.S. at 201.
15. The EEOC, the federal agency in charge of enforcing federal laws prohibiting discrimination, has similarly interpreted the BFOQ defense narrowly. In 29 C.F.R. § 1604.2(a) (2020), the agency states: “The commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly.”
16. 42 U.S.C. § 2000e‑2(a)(1).
17. Id. § 2000e‑2(e).
18. Henry, 539 F.3d at 580; see also Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 815 (8th Cir. 1983) (stating that employers face a “heavy burden” to appropriately establish a BFOQ defense).
19. Criswell, 472 U.S. at 419 n.29.
20. See Johnson Controls, 499 U.S. at 201.
23. Id.; see also Diaz, 442 F.2d at 388 (noting that “the use of the word ‘necessary’ in [42 U.S.C. §2000e‑2] requires that [courts] apply a business necessity test, not a business convenience test”).
24. Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969).
25. E.g., Diaz, 442 F.2d at 387 (“[I]t would be totally anomalous to [construe this provision] in a manner that would, in effect, permit the exception to swallow the rule.”).
26. See Johnson Controls, 499 U.S. at 204 (quoting W. Air Lines v. Criswell, 472 U.S. 400, 413 (1985); Dothard, 433 U.S. at 333).
27. See, e.g., Dothard, 433 U.S. at 335–36 (emphasizing the inability to maintain prison security as a partial justification for deeming sex a BFOQ for a prison guard role); Johnson Controls, 499 U.S. at 206 n.4 (noting privacy could serve as a justification for a BFOQ under the “essence of the business” test); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 740–41 (6th Cir. 2004) (holding that female gender is a BFOQ for guards in female prisoner housing units because it would decrease the likelihood of sexual abuse and other security issues); Fesel v. Masonic Home, Inc., 447 F. Supp. 1346, 1352 (D. Del. 1978), aff’d, 591 F.2d 1334 (3d Cir. 1979) (recognizing the privacy interests of residents in a retirement home who would prefer a nurse aide of the same sex); Norwood v. Dale Maintenance Sys., Inc., 590 F. Supp. 1410, 1423 (N.D. Ill. 1984) (holding that the fact that a washroom attendant could see men using the facilities was a sufficient justification to make sex a BFOQ to protect privacy interests).
28. See McGinley, supra note 9, at 266 (“While courts are generally more lenient in finding BFOQs when the employer asserts consumer privacy as a justification, courts judge an employer’s BFOQ defense more harshly when the employer hires women or men exclusively to use sex appeal to sell unrelated goods and services.”).
29. Yuracko, supra note 12, at 158.
30. See Rosenfeld v. S. Pac. Co., 444 F.2d 1219, 1224 (9th Cir. 1971) (offering the job of a wet-nurse as an example of a job warranting sex as a BFOQ because the employee’s physical characteristics are essential to the job).
31. See Wilson v. Southwest Airlines Co., 517 F. Supp. 292, 301 (N.D. Tex. 1981) (emphasizing that “in jobs where sex or vicarious sexual recreation is the primary service provided, e.g. a social escort or topless dancer, the job automatically calls for one sex exclusively.”); Larry Alexander, What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies, 141 U. Pa. L. Rev. 149, 205 (1992) (noting that hiring only female strippers is a permissible use of sex as a BFOQ).
32. See Diaz., 442 F.2d at 385 (rejecting Pan American Airways’ attempt to exclusively hire female flight attendants); Wilson, 517 F. Supp. at 303 (rejecting Southwest Airlines’ attempt to only hire female flight attendants); Guardian Cap. Corp. v. N.Y. State Div. of Hum. Rts., 360 N.Y.S.2d 937, 938–39 (N.Y. App. Div. 1974) (rejecting a restaurant’s argument that hiring only males was necessary for its business).
33. See EEOC v. R.G., 884 F.3d 560, 586 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (quoting Diaz, 442 F.2d at 389) (noting that when “asked to determine whether customers’ biases may render sex a ‘bona fide occupational qualification’ under Title VII . . . ‘it would be totally anomalous . . . to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid.’”); see also Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir. 1982) (holding the district court erred in allowing employers to hire based on customer preferences); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (rejecting a company’s BFOQ defense based on international clients’ cultural preferences for a male marketing partner).
34. 442 F.2d at 388.
37. 653 F.2d at 1276.
39. Id.; see 29 C.F.R. § 1604.2(a)(1)(iii) (2020) (“The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers except as covered specifically in paragraph (a)(2) of this section.”); 29 C.F.R. § 1604.2(a)(2) (2020) (“Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress.”).
40. 29 C.F.R. § 1604.2(a)(2) (2020).
41. Yuracko, supra note 12, at 158 n.28 (citing St. Cross v. Playboy Club, Case No. CSF 22618–70, Appeal No. 773 (N.Y. State Div. of Hum. Rts. Dec. 17, 1971); Weber v. Playboy Club, Case No. CSF 22619–70, Appeal No. 774 (N.Y. State Div. of Hum. Rts. Dec. 17, 1971)).
42. See 29 C.F.R. § 1604.2(a)(2).
43. See cases cited supra note 6.
44. Wilson, 517 F. Supp. at 301 (emphasis added).
45. Press Release, Equal Employment Opportunity Comm’n, Gold, Inc. / Sammy’s Gentlemen’s Club to Pay $20,000 to Settle EEOC Sex Discrimination Lawsuit (Dec. 10, 2019), https://www.eeoc.gov/eeoc/newsroom/release/12–12-19.cfm.