1. David J. Paster
245 North University Place; Unit 310
Stillwater, OK 74075
Cell: (702) 813-5062
E-mail: david.paster@hotmail.com
LinkedIn ™ David Paster;
http://www.linkedin.com/pub/david-paster/48/234/190
Title: Bona
Fide
Occupational
Qualification
(BFOQ)
–
The
Secret
(Saucy)
Ingredient
That
Enables
the
Exceptional
Employment
Status
of
“Model”
Employees
and
Why
Hiring
More
Aesthetically
Attractive
Employees
in
Hospitality
Makes
Good
Business
Practice
Abstract:
Successful “breastaurants” rely on one key differentiating variable, which is the provision
of unique work force solely comprised of generally accepted to be sensually attractive
women acting as servers. Dr. Daniel S. Hamermash’s salient conclusion of his scientific
research published in the book, Beauty Pays: Why Attractive People Are More Successful
is that better-looking people tend to sell more products or attract more new customers. If
the business goal a “breastaurant,” as with most capitalistic endeavors, is to churn more
business and maximize profits to the firm, then the field of hospitality should recognize
the material value of hiring (and conversely, not employing) certain population segments
as protected under labor law by the Bona
Fide
Occupational
Qualification
(BFOQ).
Key Words:
Bona
Fide
Occupational
Qualification
(BFOQ),
Breastaurants,
Aesthetically
Attractive,
Workplace
Discrimination,
Essence
Introduction:
Throwing one’s weight around is an unmitigated positive when it comes to dining at the
chain, themed restaurant, The Heart Attack Grill. If one voluntarily weighs in on a
modified industrial scale at over 350 pounds, the food is courtesy off the house. Clearly
the establishment’s premise is a lark, poking a (reaching) stick at the (often) all-too-self-
serious healthy eating movement. No reasonable person would believe that a menu item
in this “hospital themed restaurant” such as the Quadruple Bypass Burger, weighing in at

2. 9,982 calories and composed of four half-pound beef patties, twenty strips of bacon, eight
slices of American cheese, a whole tomato and half an onion served in a bun coated with
lard (http://en.wikipedia.org/wiki/Heart_Attack_Grill) is a sensible eating option
And what is a hospital without it determined and loyal workforce comprised of nurses? In
this case, nurse waitresses provocatively dressed in cartoonish, décolletage baring
Halloween costume style “uniforms”. Yet, if a legitimate male registered nurse (RN) or
even an obese as the restaurant’s marquee clients’ legitimate, board certified woman
doctor wished to work there, he or she would not be hired. And most courts would, not
consider not hiring them because of their gender or upper-end Body Mass Index (BMI),
except for in a few states (Parker 2010), as an act of employment discrimination.
The “sexy nurse” servers make this restaurant chain, at its (congested) heart, yet another
“breastaurant” in the spirit of founding breast-fetishizing food emporium, Hooters and its
more contemporary culinary colleagues including, but definitely not exclusive to, Twin
Peaks, the Tilted Kilt, Bone Daddy’s House of Smoke, Brick House Tavern & Tap, Third
Base Sports Bar, and Missouri’s proprietary Hooter’s knock-off, “Show-Me’s”. Ah,
clever nominative sexual innuendo.
As silly and contrived as the various innuendo laden restaurants marketing position might
be (i.e., bringing to life
a
bit
of
a
1970s
style,
Aaron
Spelling
mastered,
“Jiggle
Show”,)
the
formula
seems
to
work
as
an
increasingly
number
of
“breastaurants”
emulate
and
enter
the
highly
competitive
(and
high
failure
rate)
food
and
beverage
business.
Hiring exclusively only aesthetically attractive, “buxom babes” as servers is simply good
business practice. If, as with most capitalistic endeavors, the goal of the firm is to
maximize profits, then capitalizing on the quintessentially human dynamic of sexual
attraction works.
Dr. Daniel S. Hamermash, author of Beauty Pays: Why Attractive People Are More
Successful, states in an October 27, 2011 Wall Street Journal article by Sue Shellenbarger
titled, “On the Job, Beauty is More than Skin-Deep,” states, “Research shows that better-
looking people tend to sell more products or attract more new customers” (Shellenbarger,
2011). Still, it is not workplace discrimination to hiring only attractive individuals,
usually of one gender, due to a somewhat profound caveat in United States labor law.
The
essence
of
what
“breastaurants
are”
and
the
value
added
to
the
respective
brands,
is
based
on
the
suspension
of
a
concept
of
egalitarian
sexes.
Rather,
“breastaurants,”
like
other
sensually
hedonic
and
libertarian
enterprises
prior,
have
found
a
legal
means
to
not
hire
individuals
who
do
not
meet
the
parameters
that
comprise
the
essence
of
the
brand.
The
caveat
is
known
as
the
Bona
Fide
Occupational
Qualification
(BFOQ)
construct.
According
to
Dan
Brown’s
piece,
“Hospitality
establishments
such
as
bars,
restaurants,
and
casinos
have
successfully
used
exceptions
to
discrimination
laws
to
capitalize
on
sex
appeal
while
still
remaining
within
the
bounds
of
the
law…
A

3. leading
case
considering
the
BFOQ
defense
as
applied
to
alleged
sex
discrimination,
Int'l
Union
v.
Johnson
Controls,
Inc.,
499
U.S.
197
(1991),
interpreted
the
defense
narrowly.
Specifically,
the
United
States
Supreme
Court
held
that
an
employer
may
properly
use
the
BFOQ
defense
only
if
sex:
(1)
relates
to
the
"essence”
or
"central
mission”
of
the
employer's
business,
and
(2)
is
objectively
and
verifiably
necessary
to
the
employee's
performance
of
his
or
her
job
tasks
and
responsibilities.
Int’l
Union,
499
U.S.
At
201”
(Brown,
2012).
The
essence
and
central
mission
of
Hooters
is
to
serve
mediocre
Americans
mediocre
food-­‐like
product,
in,
for
lack
of
a
better
term,
a
sensually
feminine
manner.
A
contemporary
job
description
for
the
Hooters
Casino
actually
utilizes
the
key
word
in
its
job
description
as
follows:
As
everyone
knows,
the
Hooters
Girls
are
the
main
attraction
at
any
Hooters
property
and
the
essence
of
our
brand.
As
a
Hooters
Girl,
your
responsibility
will
be
to
represent
one
of
the
most
recognizable
and
glamorous
brands
known
worldwide.
In
this
particular
role
as
a
Hooters
Girl
Casino
Dealer,
you
will
deal
popular
table
games
to
the
guests,
making
sure
they
have
the
best
casino
experience!
You
will
make
relationships
with
valued
gaming
guests
and
market
our
gaming
products.
This
position
is
also
responsible
for
the
promoting
of
special
events
and
promotions
on
the
casino
floor.
The
essence
of
the
job
is
based
on
socially
acceptable
female
sex
appeal.
It
is
also
required
that
the
Hooters
Girl
attends
in
and
participates
in
company
sponsored
promotions
to
help
ensure
the
success
of
our
brand.
(Hooters
Girl
Dealer,
2012)
It
turns
out
that
Russian
dressing
can
potentially
spoil
the
essence
of
“socially
acceptable
female
sex
appeal”.
While
not
the
only
case,
the
most
famous
recent
attempt
at
a
jury
awarded
lottery
was
with
Mr.
Grushevski.
“On
February
5,
2009,
Nikolai
Grushevski,
a
man
who
allegedly
applied
for
and
was
denied
a
food
server
position
at
a
Hooters
restaurant
in
Corpus
Christi,
Texas,
filed
a
gender
discrimination
class
action
lawsuit
against
the
restaurant
chain.
Grushevski
v.
Texas
Wings,
Inc.,
C.A.
No.
09-­‐cv-­‐00002
(S.D.
Tex.
2009).
Grushevski
alleged
that
the
on-­‐
duty
manager
told
him
that
"Hooters,
locally
and
nationally,
would
not
hire
males
for
waiter's
positions,"
and
Grushevski
argued
that
he
was
"denied
a
waiter's
position
because
of
his
gender
in
violation
of
Title
VII."
(Complaint,
P
11).
Grushevski
is
correct
that
that
the
exclusive
hiring
of
women,
on
its
face,
violates
Title
VII's
prohibition
against
sex
discrimination.
However,
as
explained,
the
bona
fide
occupational
qualification
("BFOQ")
exception
could
apply
and,
if
so,
would
allow
Hooters
to
avoid
the
proscriptions
of
Title
VII
despite
the
apparently
discriminatory
practice.”
(Brown,
2012)
Still,
and
as
crazy
as
it
may
seem,
Gruchevski
was
not,
as
alluded,
the
first
person,
nor
will
he
be
the
last,
to
think
of
this
ploy.
Filed
On
February
5,
2009,
Gruchevski’s
claim
sought
an
injunction
to
stop
Hooters
(and
in
spirit,
their
“breastaurant”
brethren)
from
“discriminating
against
male
applicants
for
the
[server]
position,”
as
well
as
an
unspecified
amount
of
money,
including
emotional
and
punitive
damages.

4.
According
to
the
New
York
Employment
Lawyer
Blog,
“The
claim
challenges
an
11-­‐
year-­‐old
agreement,
in
which
Hooters
paid
$3.75
million
in
a
2007
employment
discrimination
class
action
suit
settlement.
Although
Hooters
agreed
to
create
gender-­‐neutral
positions
such
as
kitchen
staff
and
bartender
positions,
the
1997
settlement
allowed
Hooters
to
continue
to
exclusively
hire
women
as
servers.
The
current
suit
alleges
that
the
adopted
policy
remains
discriminatory,
and
even
though
Hooters
servers
are
referred
to
as
“Hooters
Girls,”
the
positions
should
not
be
limited
to
women.
(Schwartz
&
Perry,
2009).
The
“breastaurant
constructs”
are
not
historically
novel.
Jurisprudence
was
established
from
the
very
club
where
uber-­‐feminist
Gloria
Steinem
went
“undercover”
to
write
I
was
a
Playboy
Bunny.
The
New
York
Human
Rights
Appeal
Board
found
that
being
female
was
a
BFOQ
for
the
position
of
Playboy
Bunny
™
(“Bevertainers”
half
a
century
before
their
time)
at
the
Playboy
Club
™,
“finding
the
purpose
of
the
job
was
to
titillate
and
entice
men
and
that
female
sexuality
was
reasonably
necessary
to
achieve
that
purpose.
See
St.
Cross
v.
Playboy
Club,
Appeal
No.
773,
Case
No.
CFS22618-­‐70
(New
York
Human
Rights
Appeal
Board,
1971)”
(Brown,
2012).
In
other
words,
there
are
elements
that
comprise
a
facility’s
essence
or
core
that
cannot
be
practically
substituted.
To
have
women
as
bunnies
was
reasonable.
Silly
rabbit
Grushevski
and/or
his
attorney
should
have
thought
through
their
attack
with
greater
cohesion.
At
the
end
of
the
business
day,
what
counts
is
the
bottom
line
(preferably
in
orange
nylon
short-­‐shorts).
Since
the
reality
of
an
establishment
receiving
greater
sales
and
subsequent
revenue
when
more
attractive
individuals
are
employed
has
been
validly
and
reliably
proven
by
Dr.
Hamermesh
in
his
pioneering
work,
which
is
supported
but
other
concurring
research,
the
wise
move
to
maximize
return
on
investment
for
a
“breastaurant”
operator
is
to
only
hire
as
an
attractive
and
thusly
suitable
workforce
as
possible.
Sources:
Brown.
Dan.
Can
Gender
Discriminate
or
Provocative
Dress
Requirements
Ever
be
Appropriate
for
Your
Employees?.
2012.
Hotel
Business
Review
/
Hotel
Executive.com.
Retrieved
from:
http://hotelexecutive.com/business_review/2014/can-­‐gender-­‐discriminate-­‐or-­‐
provocative-­‐dress-­‐requirements-­‐ever-­‐be-­‐appropriate-­‐for-­‐your-­‐employees
Hooters
Girl
Dealer
Position
Description.
2012.
Retrieved
from:
http://ch.tbe.taleo.net/CH09/ats/careers/requisition.jsp?org=HOOTERSCASINOHO
TEL&cws=1&rid=1884
Parker.
Chris.
5/21/2010.
Hooters
and
Weight
Discrimination.
The
Word
on
Employment
Law.
Retrieved
from:
http://www.wordonemploymentlaw.com/2010/05/hooters-­‐and-­‐weight-­‐
discrimination/

5.
Schwartz
&
Perry.
2/11/2009.
Gender
Discrimination
Suit
Filed
by
Male
Applicant
Against
Hooters.
New
York
Employment
Lawyer
Blog.
Retrieved
from:
http://www.nyemploymentlawyer.com/2009/02/male_applicant_files_suit_agai.ht
ml
Shellenbarger,
Sue.
(2011,
October
27,
2011).
On
the
Job,
Beauty
is
More
than
Skin-­‐
Deep,
Wall
Street
Journal.