EEOC sues restaurant chain for failing to hire male servers

Posted by Charles Middleton on 09/20/2018

Q: In late August, the Equal Employment Opportunity Commission (EEOC) filed class action suit against Burgers & Beer, a casual dining restaurant chain in Southern California. The Commission alleges that the restaurant chain violated federal law by denying males the opportunity to work as waiters, instead favoring female applicants. What are the allegations underlying this suit?

A: The EEOC contends that since at least 2015, male applicants and employees were disqualified from server positions based on sex. The complaint maintains that the company routinely rejected male applicants for those positions and maintained a server workforce that was more than 90 percent female. The EEOC further claims that since at least 2015, the six-restaurant chain has deterred male employees from seeking transfers or promotions when server job openings become available. The EEOC alleges that at least two employees of the restaurant chain were told that they were being denied a position as a server because, “the owners only wanted female servers like at Hooters or Tilted Kilt," and that server positions “were only for females, per the owners.” The Commission said it also found cause to believe that the proposed class of male applicants and employees were similarly denied promotions, hire or transfer into open server positions.

Q: What is the EEOC seeking in the lawsuit?

A: The EEOC has asked the court to enter a permanent injunction to prohibit Burgers & Beer from engaging in its alleged unlawful discrimination on the basis of sex. The Commission is also seeking compensatory and punitive damages for former and current employees of Burgers & Beer.

Q: Is an employer not allowed to give preference to males or females for certain positions?

A: No. Typically, gender-based hiring is not permitted based on an employer's preferences or belief that one sex may be more suited to the type of worked required in a particular job. Similarly, the law prohibits an employer from making a hiring decision because it believes its customers would prefer a male or female in a particular position. In the lawsuit, the EEOC contends that Burgers & Beer based its alleged hiring practices on a belief that its customers prefer having female servers. Speaking about the Burgers & Beer suit, Christopher Green, the director of the EEOC's San Diego local office, commented, “Denying someone the chance to compete for a job simply because of their gender violates federal law — even if the employer presumes customers would prefer to be surrounded by female servers. Presumed preferences are no excuse for any kind of discrimination. The EEOC will continue to pursue the eradication of this type of unlawful behavior.”

Q: Are there any exceptions to the general rule prohibiting gender-based preferences?

A: Yes, there is a limited exception, but is applicable only in very narrow circumstances. Title VII of the Civil Rights Act lets companies discriminate on the basis of "religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." The law allows the discrimination when it is necessary for the purpose of authenticity or genuineness as for an actor or fashion model. Hooters Restaurant has argued that this exception allows it to hire only female servers. They contend that their servers are also entertainers, who audition for their roles and, once hired, must maintain a glamorous appearance, and sing, dance and engage the customers to provide a unique experience.


Published The Oklahoman, September 20, 2018