SAMMARCO: Hooters and The Supreme Court


Thursday, June 25, 2020

Supreme Court Justice Neil Gorsuch sent the conservative legal world into a tizzy last week with his ruling in Bostock v. Clayton County, Georgia. In conjunction with the Court’s progressives and Chief Justice John Roberts, Gorsuch decided that Title VII of the 1964 Civil Rights Act protects employees against discrimination because of their sexual orientation or gender identity. Though legal protections for LGBT Americans are deserved, Gorsuch’s ruling will bring serious, unforeseen consequences on all Americans—especially for the controversial restaurant chain Hooters. 

Before we get to the restaurant famed for its “owl conservation efforts”, let’s get the legal jargon out of the way. Gorsuch took a circuitous, unconventional route in squaring textualism and his belief that a law from 1964—decades before Judith Butler popularized modern gender theory and the Lawrence v. Texas decision—protected Americans from discrimination on both accounts. First, the statute in question comes from Title VII of the 1964 Civil Rights Act (CRA):

“It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

Nowhere in this statute are the words “gender identity” or “sexual orientation.” Case closed, right? Not so fast. Gorsuch makes the argument that although sexual orientation or gender identity are not classes explicitly protected by the CRA, its bans on sex-based discrimination in hiring and firing implicitly protect gay and transgender individuals in the workplace. Gorsuch expresses this in the following key passage from his decision:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.

Because discrimination based on homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.

There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”

Justices Alito and Kavanaugh eviscerated the logical flaws in Gorsuch’s argument in their separate dissents. Repeating them here would waste time. Instead, let’s focus on the broader implications of Gorsuch’s decision through the lens of a business owner. Namely, imagine you are the franchise owner of the morally objectionable and culinarily deplorable restaurant Hooters. 

Besides chicken wings, cheap beer, and big screen TV’s, straight men flock to Hooters to be waited on and stare lustfully at the female wait staff. The restaurant almost exclusively hires women for wait staff positions for this very reason. A 1997 class-action lawsuit was filed on behalf of the men turned down from wait staff positions at Hooters restaurants for simply not being female. In justifying their discriminatory hiring practices, Hooters argued that being female was essential to the performance of a Hooters waitress because female sex appeal was core to its business model. Therefore, they should be exempt from the federal discrimination policy. 

Hooters settled this case out of court, but their invocation of the “bonafide occupational qualification” (BFOQ) exemption in the CRA (a provision designed to allow businesses to discriminate in some cases where discrimination is needed to find qualified employees) draws us back to the present day.    

Gorsuch’s decision does not include any discussion of the BFOQ whatsoever. His sweeping decision precisely eliminates this exemption, claiming that it violates the original language of Title VII itself. By Gorsuch’s logic, it does not matter that the ultimate reason why men aren’t hired as waiters at Hooters is that the restaurant is designed to entice straight men with well-endowed women. Therefore, Hooters and any other business that discriminates in hiring or firing based on race, sex, or creed, regardless of their ultimate motivation, is doing something illegal. 

One can hardly make a case that forcing Hooters to hire men was the intent of the lawmakers that drafted the Civil Rights Act of 1964 nor is it a particularly important issue. Justice Alito draws out a few of the more consequential implications of the ruling: the decimation of sex-segregated housing and serious impacts on professional sports. Instead of shoehorning protections in a manner that is opposed to true textualism, the Court should have dismissed the suit and sent this issue to back its rightful place—the halls of Congress. LGBTQ protections are long overdue but Justice Gorsuch’s sloppily argued decision has long-term implications for religious and secular Americans alike, including but not limited to the owners of Hooters.

Nick Sammarco studies economics and Spanish at Suffolk University in Boston, Massachusetts.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Nick Sammarco

Suffolk University

Nick Sammarco studies economics and Spanish at Suffolk University in Boston, Massachusetts.

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