What are the rules on businesses that wish to only hire attractive females?

Question

Many businesses feature beautiful female employees as part of their business plan and service offering. Examples include:

• Hooter's waitresses
• Sportclips stylists
• A small chain of drive-thru smoothies in my area that feature bikini clad hotties with whom you can purchase a photo
• Most all entertainment jobs

I am considering buying a franchise that falls into one of these categories and I just wanted to understand the legality of hiring only attractive women.

Is it sexual discrimination or just a legitimate hiring practice, since offering attractive female employees is part of the business strategy?

I'm in Maryland, USA in case that matters, but I'm looking for kind of a high level, general answer that might apply to anyone in the US.

Answer 1

There is a good answer at the Skeptics StackExchange here. Its three most relevant references are:

• 42 U.S.C. Chapter 21, especially Subchapter VI (applies only to employers with fifteen or more employees every day in at least 20 calendar weeks in a year)
• An example case, Wilson v. Southwest Airlines Co. 517 F. Supp. 292 (N.D. Tex. 1981)
• Katie Manley, The BFOQ Defense: Title VII’s Concession to Gender Discrimination, 16 Duke Journal of Gender Law & Policy 169-210 (2009)

Wilson v Southwest held that being attractive and female is not a Bona Fide Occupational Qualification (BFOQ) for being a flight attendant, even when the company marketed themselves using female sexuality:

sex does not become a BFOQ merely because an employer chooses to exploit female sexuality as a marketing tool or to better ensure profitability

Most scholars believe that the BFOQ exception would not apply to Hooters servers for the same reason. The job is serving food, and the sexualized nature of the service is just the manner in which they do the job, not a requirement of the primary job itself.

Hooters has never had a discrimination suit go to trial, however has been sued and settled out of court multiple times.

Employment discrimination based on gender has been allowed only in cases where the primary product being sold (not merely the manner of delivery of the primary product) requires a particular gender. One example would be sexual entertainment. This would include strip clubs, modelling agencies, Nevada brothels, etc.

I'll say it one other way.

Simply offering attractive female service as part of a business strategy is not enough to trigger a BFOQ exception.

To allow a BFOQ defence based on an employer's desired manner or means of achieving its primary business purpose would render the statute inoperative, and the BFOQ exception would "swallow the rule" Phillips v. Martin Marietta 400 U.S. 542 (1971). (This paragraph taken from here.)

Answer 2

You might find the legal concept you're looking for is that of a Bona Fide Occupational Qualification (BFOQ). I am probably glossing over some subtleties but my understanding is that you can discriminate against protected classes in some (all?) cases as long as you can show that it's related to a genuine qualification for the job. I don't know whether this specifically applies to places like Hooters and to gentlemen's clubs but it seems possible. It could also be that nobody has sued and gone to court before getting a settlement.