THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, December 12, 1995 TAG: 9512120008
SECTION: FRONT PAGE: A16 EDITION: FINAL
TYPE: Another View
SOURCE: BY MARY JANE HALL
LENGTH: Medium: 82 lines
I have been puzzled by the repeated attacks in your paper against the Equal Opportunity Commission's enforcement action against Hooter's, a national restaurant chain which refuses to hire men to serve tables. I dismissed the first vituperous article by columnist Larry Maddry as the uninformed reaction of someone who quite obviously had no idea what he was talking about. The even more vitriolic article appearing on the front page of the Dec. 3 Commentary section, however, seemed meant to be taken seriously. Given that these pieces included not even a passing reference to the Civil Rights Act, the statute the EEOC is charged to enforce, I cannot understand the basis for the hostile reaction of these writers. How about a brief look at the federal law that is, after all, the reason the EEOC exists?
Title VII of Civil Rights Act of 1964 prohibits employment discrimination of the basis of sex, race, national origin, religion and color. Employers under the Act, including Hooters, may not refuse to hire people of one gender or the other if they can do the job. Section 703 of the Act does permit discrimination in certain instances where gender is bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. The U.S. Supreme Court has declared that this is an ``extremely narrow exception to the general prohibition of discrimination on the basis of sex.'' An employer wishing to take advantage of this exception is generally required to prove that all or substantially all members of the excluded sex would be unable to perform the job duties.
A man could not serve as a wet nurse, for example. Few situations are as clear-cut, however, and the Hooters case is definitely not one of them.
The Alabama Board of Corrections sought to exclude women from maximum security prison guard jobs, on the basis that being male was a bona fide occupational qualification for the job, but the Supreme Court found that excluding women from this employment opportunity violated Title VII. In a case that sounds like the Hooters case, Pan Am sought to justify its refusal to hire men as flight attendants by presenting uncontradicted evidence that its passengers overwhelmingly preferred female stewardesses. A psychologist testified that in the unique environment of an airplane cabin, female attendants were better able to attend to the special psychological needs of passengers. The Court of Appeals didn't buy any of these arguments, because the primary function of an airline is to transport passengers.
Given that this is the law in the United States, why does your commentator label the action against Hooters ``idiot enforcement'' and the EEOC itself a ``bureaucracy dumber than rocks?'' If the essence of Hooters is, as it claims to be, a family restaurant, then how on earth can it justify refusing employment opportunities to men? Can men wait tables and serve chicken wings? I think so. Do customers prefer women? Perhaps so; Pan AM's customers did, but that didn't justify their discriminatory hiring practice. Aren't female waitresses at Hooters just as tangential to their food and beverage sales as female stewardesses were to Pan Am's airline business?
Remember that 40 years ago, when most large businesses in this country were dominated by white men, their clients probably preferred dealing with white men. Client preference is not an excuse to discriminate; and thanks to Title VII we are changing client preferences in this country. If a white establishment tried to exclude non-whites from employment in order to maintain some image that it claimed was essential to its business, I hope your paper would oppose the effort.
Your commentator states unequivocally that ``Hooters restaurants are about sex. Hooters is selling titillation and flirtation.'' Is that so? They claim to be a family restaurant that will provide a high chair or booster seat for your little ones. If they're there to titillate and flirt, why can't they hire men to titillate and flirt with the female clientele? If the essence of their business is truly to ``jiggle'' (as Maddry put it) for the men, then perhaps they should change their ads and announce that it is a gentlemen's entertainment place.
It's my opinion that Hooters is engaging in impermissible sex discrimination by refusing to hire men into jobs that they are obviously able to do. When you keep printing columns by outraged men spouting invective at the EEOC, you are undoubtedly giving your readers the impression that the EEOC is off-base by enforcing pretty clear law. It isn't. You owe your readership a more balanced presentation of this issue. MEMO: Ms. Hall is an attorney and adjunct faculty at Old Dominion University.
by CNB