We all know the deal: Las Vegas, especially on the Strip, is known for its bartenders that a lot look better than they can actually make drinks. Young, Sexy female bartenders with very low cut shirts that expose their enhanced breasts and dresses that barely cover their butt is the new stereotype of the Vegas Bartender. While Vegas has always been sexy, it used to be that most bartenders were men, picked often for their knowledge of drinks and their ability to schmooze with patrons. However now women are often being picked often for how they look barely wearing any clothing, and this practice puts bar and club owners at risk for violating the law.
According to Jay M. Wolman, an attorney with Randazza Legal Group, this is a serious problem:
“The issue arises under Title VII of the Civil Rights Act of 1964,” Wolman explained to PaceVegas.com “The law, among other things, prohibits discrimination in employment on the basis of gender. There is an exception, known as the bona fide occupational qualification where gender is reasonably necessary to the normal operation of that particular business or enterprise.”
Simply put, the only exception to the law is when an employer can prove that discrimination is essential to performing the job. The Courts have been very careful to only allow very, very narrow exceptions to the law, usually only for religion and gender, and even in that it’s very limited. Basically the only exception that has ever been allowed is either for models or special facilities that service one sex only (like a domestic violence shelter or mental facility.)
Hooters Restaurant is perhaps the best public example of a company that has been sued several times for violating this law. In the most famous case, in 1997 several men were turned down for Hooters jobs in Chicago. In that case, Hooters settled the case for $3.75 million – effectively giving in, but not changing their policy. Even in 2009, they settled another case in Corpus Cristi Texas, giving the plaintiff money before it could be certified into a class action, but again not changing their questionable policy.
Also in the last few years, more than a few restaurants have been fined by the Equal Employment Opportunity Commission, including west coast steakhouse chain Lawry’s which had a policy to hire only women in wait positions since 1938. They had to pay $1 million to rectify the issues, including paying $500k to bus boys who were never hired for waitress positions. One Ruby Tuesday paid $100,000 last year to settle an EEOC lawsuit involving explicit hiring of women under the theory that it was avoiding issues of co-ed housing.
According to Wolman:
“Having a female bartender only policy is unlikely to survive a rigorous BFOQ analysis. The argument that they are models is an obvious attempt at an end-run, as a fashion model is one of the well-known exceptions. However, mere customer preference is unlikely to explain why an attractive male could not fulfill the same role.”
So can you hire female only bartenders? Of course, but it’s illegal and an EEOC complaint is just a click away. Any hiring practice that has a gender preference is closely examined by the EEOC, and wanting women who are “sexy” with big boobs to represent your bar isn’t a valid hiring characteristic.
