If you’ve ever been into Earl’s, Cactus Club, Moxie’s or one Canada’s many other trendy chain restaurants, you’ve probably noticed something about the restaurant’s wait staff. The servers are overwhelmingly (or exclusively) women under the age of 30. With few exceptions, men work in the kitchen or in management. The female servers will adopt a highly sexualized dress code with tight skirts, high heels and low cut tops, while any males in the “front of house” will wear a dress shirt and dress pants.
In Canada, it is illegal for employers to discriminate in hiring and in conditions of employment on a number of grounds, including gender and age. Recognizing this, many companies in the restaurant industry have created a brand around an image of being sexy and flirty – the type of place that twenty-somethings go for a second date or yuppies meet for after-work drinks. Some establishments don’t even try to pretend otherwise. Hooters is far more famous for its servers with low-cut tank tops than for its beer and wings.
It’s hard to imagine ever being served by a man at Hooters or by a 55 year-old at Cactus Club. It’s also impossible to accept that this is simply some form of coincidence. While these types of hiring practices clearly discriminate against men or older workers, in some circumstances the discrimination can be justified if the business can demonstrate a bona fide occupational requirement.
For discrimination to be legally justifiable, it would have to be demonstrated:
- that the employer adopted the standard for a purpose rationally connected to the performance of the job;
- that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
In many cases, occupational requirements are relatively straight forward – think for example of school bus driver that loses her sight. A standard (adequate vision) is rationally connected to the performance of a job, and it may be impossible to accommodate a blind school bus driver without imposing undue hardship on the employer.
But what about Hooters? How does a hiring policy that excludes men meet the requirements of a bona fide occupational requirement? Let’s look at this in parts.
Is the standard (female servers only) for a purpose rationally connected to the performance of a job?
Some will argue that the job is to serve beer and chicken wings, and that being a woman has nothing to do with serving. Hooters will disagree, as they argued in one statement to Business Insider in a 2015 article on Hooters’ hiring practices:
While we offer world famous wings and burgers, the essence of our business is the Hooters Girl and the experience she provides to our customers. Hooters Girls are entertainers. They audition for their roles and, once hired, they must maintain a glamorous appearance, and sing, dance and engage the customers to provide a unique Hooters experience.
So what is the job? Food and beverage service, or (male) entertainment?
Was the standard adopted in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose?
I have no doubt that Hooters feels that their hiring policy serves a legitimate work-related purpose. It was not created in bad-faith to exclude certain groups from participating in the employment.
Is the standard reasonably necessary to accomplish the legitimate work-related purpose? Is it impossible to accommodate the characteristic challenging the standard without imposing undue hardship on the employer?
To answer this question, we have to again ask what is the job? If the job is to serve food and beverages, there is nothing linking women to the ability to take an order and bring out beer. There is also nothing preventing men from performing this job. However, if Hooters servers are primarily entertainers, the argument is that gender exclusion is necessary to fulfill the requirements of the job.
I am skeptical that this argument would succeed in Canada.
Hooters occupies within a strange environment somewhere between a pub and a strip club. However, other restaurant chains cannot be said to occupy this same grey-zone, as Earl’s or Cactus Club employees can hardly be described as “entertainers”.
So can a restaurant with a sexy, flirty brand refuse to hire someone based on gender, age or a disability? In my opinion, this would be illegal discrimination, regardless of brand image. Unfortunately, there is remarkably little case law on this interesting and timely topic.
Make sure to read my follow-up analysis on whether the restaurant industry discriminates against women.