Appearance Based Hiring: The 'Bona Fide Occupational Qualification' Carveout, Exploring Hooters of America and Air India v. Nargesh Meezra
Title VII of the Civil Rights Act of 1964 permits hiring discrimination on the grounds of religion, sex and natural origin as a bona fide occupational qualifcation (BFOQ), if the same is integral to the business of the establishment. For years, the American franchise Hooters has been subjected to various lawsuits for its discriminatory hiring practices. This Article examines whether a restaurant which markets itself as a family-friendly joint can insist that its female servers must don makeup and wear sexually alluring costumes and further, justify its discriminatory hiring practices as a “business necessity” under the BFOQ carve out. This Article explores the arguments raised by such employers and also provides a comparative constitutional analysis with the discriminatory hiring practices in the airline industry, addressed by the Indian Supreme Court in the land mark case of Air India v. Nargesh Meerza. This Article argues that sex is not a permissible BFOQ for servers in the hospitality industry as the service provided by a “Hooters Girl” does not form the core of the Hooters business and that across jurisdictions, customer preferences cannot be used to justify discriminatory employment policies when sex of the employee is merely tangential to the business.