(CNN)As criticism mounts of Donald Trump for his disparaging remarks about women, an old lawsuit reinforcing the candidate"s troubling record on female employees has emerged. The 2012 lawsuit alleged that Trump wanted to get rid of female hostesses he considered unattractive at one of his golf resorts and replace them with better-looking women.
Unless you"re Hooters. The "breastaurant" argues that for a "Hooters Girl," a "pretty face" and "sex appeal" are essential. Hooters claims sexy female waitresses are a BFOQ. Analogizing the job to an actor or fashion model, for whom looks might qualify as a BFOQ, Hooters states its waitresses are entertainers who audition for their roles and, once hired, maintain a specific appearance to provide that unique Hooters experience.
For the most part, Hooters has avoided adjudication of this defense by settling court cases. But the BFOQ defense would be an interesting proposition to a court today, especially in light of the ever-evolving views of gender in our society. Recently, one federal appeals court flat out said that because of the demanding legal standards, BFOQs are "few and far between. In many industries, it is difficult to imagine any jobs that would qualify as BFOQs."
Similarly, it appears the 2012 case against Trump was settled quietly in 2013 without any admission of wrongdoing. So we won"t ever learn if Trump"s golf resort could have successfully adapted the "Hooters defense" in asserting a BFOQ.
Had it proceeded to court, the Trump defense might have been that the more fetching hostesses at the restaurant rose to the level of "entertainers" -- not simply hostesses. This would have been a tough argument to make for three reasons: First, the BFOQ exception is very narrowly, and rarely applied -- some modern courts have difficulty even imagining a legitimate BFOQ. Second, the Trump lawsuit alleged that the unattractive employees were treated differently than the attractive employees, which means that unattractive employees could perform the job as well as the attractive ones -- it"s just that the boss didn"t want to look at them while they did it, allegedly. That in turn suggests that the supposed policy was linked not just to improved sales but also to appeasing the boss man when he stopped in for a (Trump) steak. This would probably not meet the exacting standards of a BFOQ exception.
Employer "look" policies are not a thing of the past, though. Just last year the Supreme Court expressly acknowledged them as acceptable, as long as the policy has exceptions for protected classes (like wearing religiously-motivated headgear). At the same time, changing views on gender roles and sexual orientation both socially and in the law may start to chip away at companies" appearance policies. And, even if it is legal for Trump to discriminate on this basis, it"s probably not good for public relations. Fairness may not be required by the law in all instances, but it might be required by a voting constituency.
Read more: http://www.cnn.com/2016/09/30/opinions/sexism-trump-legality-cevallos/index.html
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