Employee Sex Appeal Policies: Lawful Branding or Unlawful Discrimination?

April 27, 2015

 

For businesses dependent upon sales, the sex appeal of employees who interact with customers can be a profitable marketing strategy. In the 1970’s, Southwest Airlines thrived with the public image of young, female flight attendants dressed in hot pants and go-go boots. Since its founding in 1983, Hooter’s Restaurants has grown to nearly 600 locations by employing and marketing scantily clad female waitresses known as “Hooter’s Girls.” Abercrombie & Fitch touts an “in-store experience” with young attractive sales associates referred to as “models.” 

 

Predictably, brands based on employee sex appeal have sparked discrimination claims. After all, the successful promotion and protection of such a brand necessarily requires a policy governing employee sex appeal. The stakes in such claims can be enormous because they arguably entail the legality of a brand which distinguishes a business’s products or services from its competitors and which is often the most valuable asset on the business’s balance sheet.

 

For years, private resolution of bias claims through settlement or arbitration helped many businesses avoid judicial scrutiny as to the legality of profitable brands. Recent developments, however, have sparked renewed interest in the question of whether employee sex appeal policies are lawful branding or unlawful discrimination.  Bias based upon sexual identity has been held to be synonymous with bias based upon sex under Title VII of the Civil Rights Act of 1964 (“Title VII”); obesity has been found to be a disability under the Americans with Disabilities Act (“ADA”). Several court opinions have also brought new attention to the unique legal issues presented by employee sex appeal policies.    

 

WHEN IS SEX APPEAL AN UNLAWFUL JOB CRITERION?

 

Only one state – Michigan – broadly outlaws bias based on appearance (height and weight); there is no federal law expressly barring such discrimination. Federal law does make it unlawful to use a subjective employment criterion, such as sex appeal, as a proxy or basis for discrimination against a protected class, such as race, color, religion, national origin, sex, disability or age.   

 

CONTINENTAL AIRLINES: In 1982, for instance, a federal appellate court held that a weight requirement imposed by Continental Airlines on female but not male flight attendants was gender discrimination in violation of Title VII.

 

BORGATA BABES: A link to a protected class was found to be lacking in a July 18, 2013 New Jersey Superior Court ruling. A policy prohibiting a weight gain of more than 7% was challenged by 22 male and female beverage servers known as “Borgata Babes” employed by Atlantic City’s Borgata Casino. The court granted summary judgment in favor of the Casino based largely upon the conclusion the policy was enforced equally to men and women.

 

PIN UPS: Most recently, on February 23, 2015, a Georgia federal court found a topless dancer had stated a case for pregnancy discrimination under Title VII in her termination, despite the claim of her employer, an adult entertainment club called Pin Ups, that she no longer met the club’s appearance requirements.

 

WHEN DOES CUSTOMER PREFERENCE EXCUSE BIAS AGAINST A PROTECTED CLASS?

 

Generally, customer preference never excuses bias against a protected class. To be sure, federal law allows an employer to avoid liability by showing (1) religion, sex, national origin or age is a bona fide occupational qualification (“BFOQ”) reasonably necessary to the normal operation of a business; (2) a job criterion which disqualifies disabled individuals is job-related and consistent with business necessity; or (3) accommodation of a disability or religious belief would cause undue hardship. To date, however, the only employers which have successfully defended employee sex appeal policies on such bases have been sexually-oriented businesses.

 

PLAYBOY CLUB: In 1971, the New York State Human Rights Appeal Board noted, in dicta, that sex was a BFOQ which justified the Playboy Club’s policy of hiring only females as Bunnies. The Board observed that female sexuality was reasonably necessary to perform the dominant purpose of the job which was to “titillate and entice” male customers. 

 

SOUTHWEST AIRLINES: In 1981, a Texas federal court distinguished Playboy Bunnies (and social escorts and topless dancers), from female flight attendants. In ruling Southwest’s rejection of male applicants for flight attendant positions was unlawful the court held the airline had not shown the sex appeal of female flight attendants was a BFOQ:

 

“Southwest is not a business where vicarious sex entertainment is the primary service provided.  Accordingly, the ability of the airline to perform its primary business function, the transportation of passengers, would not be jeopardized by hiring males. Southwest does not face the situation … where an established customer preference for one sex is so strong that the business would be undermined if employees of the opposite sex were hired.”

This ruling ended the airline’s hot pants and go-go boots days.

 

ABERCROMBIE & FITCH: Recently, in two 2013 California federal court opinions, Abercrombie & Fitch was alleged by the Equal Employment Opportunity Commission to have failed to accommodate the requests of Muslim “models” to wear headscarves or hijabs at work in contravention of the retailer’s “Look Policy.” In rejecting the undue hardship defense, the courts found no evidence to support the argument that deviations from Abercrombie & Fitch’s Look Policy detracted “from the in-store experience and negatively affect [the] brand.”

 

WHAT DOES THE NEAR FUTURE HOLD FOR BRANDS BASED UPON EMPLOYEE SEX APPEAL?

 

For businesses with brands based upon employee sex appeal, the stakes of bias claims will only increase. The pool of potential claimants will grow as the protection of discrimination laws expands to include new protected classes, such as obesity and sexual identity. The settlement values for discrimination claims will likely also soar as more judicial opinions are published regarding the enforceability of employee sex appeal policies.  

 

As demonstrated by recent court opinions, moreover, the option of private resolution of such discrimination claims through settlement or arbitration may not always be available.  In the near future, therefore, many businesses may face the difficult choice of (1) modifying or abandoning their employee sex appeal policies to conform to discrimination laws, or (2) narrowing their customer base and becoming more akin to sexually-oriented businesses.  

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