Our tax dollars at work.
In a recent lawsuit filed in federal court in Florida, the Equal Employment Opportunity Commission has asserted a claim of sex discrimination against a gentlemen’s club in Florida for allegedly refusing to hire a man who applied for a bartending position. According to the complaint, Sammy’s Gentlemen’s Club informed the male applicant that it “did not hire male Bartenders.” The EEOC further alleged that the employer subsequently hired female bartenders instead and that it did not hire any male bartenders in all of 2015.
As you might guess from the name, Sammy’s Gentlemen’s Club provides adult entertainment. According to its website, the company’s success revolves around its employment of “beautiful women.” Although Title VII generally prohibits employers from making hiring decisions based on sex or gender, Sammy’s may be able to win if it can show that being female is a Bona Fide Occupational Qualification for the bartender position. Sex can be a BFOQ for a particular job “where it is necessary for the purpose of authenticity or genuineness.” The most common permissible BFOQ is found in the entertainment industry, where actors can be cast for particular roles based on their protected characteristics. In determining whether other types of sex-based requirements are BFOQs, courts have also focused on whether hiring a particular sex for a position relates to the “essence” or “central mission” of the employer’s business. Notably, however, customer preference is not enough to shield an employer from liability for a discriminatory hiring policy. The question in this case is likely to turn on whether female bartenders are an essential aspect of the club or merely a customer preference.
The EEOC also claims that Sammy’s violated Title VII’s recordkeeping requirements by destroying employment applications for individuals who did not progress beyond the interview phase. As a reminder, Title VII requires employers to retain employment applications for one year.
