Leslie has worn many uniforms during her time in the restaurant industry. There have been “bikini top Mondays,” sexy Santa dress-ups with short velveteen skirts during the holidays, low-cut shirts, crop-tops that all-but-required sculpted and tanned abs, impossibly short shorts. Today, she goes back and forth between her job at a so-called “breastaurant” and another “super normal serving job” where the uniform of black pants and a white button-down wasn’t designed to draw stares.
Though the restaurant uniforms may seem like they’re on opposite ends of the sexy spectrum, good looks are valued in most service industry jobs. When I was 19, I walked myself and a resume into an Asian-Peruvian fusion restaurant in New York City. While I waited, the host called the manager and asked if they were hiring. There was a brief pause as the manager asked a question, then the host looked me up and down, said, “Yes she is,” hung up, and asked for my resume. I suspected the mystery question at the time, and I soon learned what it has to have been beyond a shadow of a doubt—it was the same question managers asked me every time someone walked through the door. “Is she cute?”
It’s the rare big-city restaurant that doesn’t ask this question before hiring floor staff. In fact, there’s little reason for them not to, because whether a restaurant has three Michelin stars or serves little more than greasy chicken wings and beer, if they only want to hire hot servers—or even just women—it’s entirely legal.
While Title VII of the 1964 Civil Rights Act protects employees from discrimination based on “race, color, religion, sex, or national origin,” it says nothing about appearance in general. In fact, there is a specific exemption that allows gender discrimination if hiring one gender over another is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” But what constitutes a “bona fide” qualification has been largely left up to the courts to decide.
In one 1968 case, Neal v. American Airlines, Inc., a flight attendant sued when she was fired six months after being married, a right American Airlines granted itself in her employee contract. The airline argued that because their flight attendants were all women, sex-based discrimination was impossible. The court disagreed, citing the right of men elsewhere in the company to get hitched. In 1971, the New York Human Rights Appeal Board ruled that it was fair for Playboy bunnies to only be women since Playboy clubs were primarily serving sex appeal—not cocktails. Only a few years later in 1974, a hotel restaurant owned by Guardian Capital Corp. that wanted to become a cabaret-style nightclub and hire only women servers in “alluring costumes” was told that serving food with a side of sex appeal wasn’t a good enough reason to engage in discriminatory practices.
“There can be some inconsistency in the law as the law developed,” said Ernest Haffner during a phone interview. Haffner is the attorney advisor in the office of legal counsel at the Equal Employment Opportunity Commission (EEOC), the federal rights agency that enforces Title VII. “That’s largely the nature of the law,” he added, noting that it morphs with each individual claim. While promoting a man over a more qualified woman applicant is clearly a violation of Title VII, appearance-based discrimination claims fall into what’s currently a murky area. It’s only illegal in a few places (and often exclusively on the basis of weight and/or height discrimination), including Washington D.C., San Francisco, and Michigan, among others.
Everywhere else, hiring discrimination is only illegal if it’s against a protected class, like race. But even that distinction is dangerously limited. A 2014 study from the Restaurant Opportunity Center found that people of color make 56-percent less than equally qualified white employees in the same job. And, as it turns out, “attractive” often means white or white-looking beauty. For example, a requirement for employees to have “natural hairstyles” (a common piece of language in grooming codes) often prohibits the naturally curly hair or braids worn by many black women.
In 2013, Farryn Johnson, a black woman from Baltimore, was fired from her job at Hooter’s because of her blonde highlights. While white women were allowed to highlight their hair, Johnson’s manager told her that the style didn’t look “natural” on her. Johnson ultimately sued Hooter’s, and in the lawsuit alleged that among other white servers who dyed their hair, “a white employee with naturally dark brown hair” was allowed to have the tips of her hair dyed red and blond. Despite women of many races having unnaturally dyed hair, black women were the only ones disciplined for it by the restaurant. In addition to the prohibition on highlights, management regularly told employees not to wear their hair curly. In this particular case, Hooter’s enforcement of their dress code was found to be discriminatory and Johnson was awarded $250,000 by the courts.
Hooter’s responded to the lawsuit with a largely empty statement: “We value and respect all of our Hooters Girls and celebrate their diversity, as evidenced by our annual swimsuit calendar models, our Miss Hooters International contestants, Hooters Girl of the Year nominees and the nearly 18,000 Hooters Girls working in our restaurants across the globe today.”
Grooming standards (i.e. specifically-coiffed hair or certain clothes) are another gray area in looks-based discrimination cases. Basically, as long as courts don’t decide they cause an “unequal burden” on one sex, companies are within their rights to make their employees dress and look however they want. Unfortunately what constitutes an unequal burden is also completely subjective. A bartender named Darlene Jespersen was fired in 2000 for refusing to wear makeup after her employer, Harrah’s Casino in Reno, Nevada, adopted a “personal best” policy that required personnel be “well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform.” She had worked there for 20 years.
At Harrah’s, men were required simply to have hair shorter than their collars and never wear ponytails. The policy for women stated, “Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.” Men were prohibited from wearing makeup while women had to have face powder, blush, and mascara “worn and applied neatly in complementary colors” with “lip color worn at all times.” Jesperson felt wearing makeup undermined her professionally and resulted in a loss of respect from her customers. As she stated in the suit, she felt makeup, “took away [her] credibility as an individual and as a person” and didn’t wear it on or off the job. Once the policy went into effect, she was given 30 days to apply for another position within the company or be terminated. Jesperson never worked at Harrah’s again.
Her lawsuit alleged that the policy was discriminatory against women and imposed a larger burden on one sex than another. The courts, however, saw grooming and dress standards as regulating “mutable” characteristics and ruled against her. Jesperson pointed out that men weren’t just exempted from the requirement to cover their faces with makeup, they were specifically told not to, she said, because, “Harrah’s considers them professional when they look like themselves.”
Haffner, of the EEOC, explained that courts are generally reluctant to change these laws because “sex-based grooming standards have been around for so long.” But it’s one thing to have social expectations for how men and women should look and another one entirely for the courts to enforce them. To look at it another way, imagine if a company required Latinx employees to wear makeup while exempting white people—it would be clearly discriminatory (and extremely offensive).
While Jespersen suffered after a change to the dress code in her workplace, looks-based discrimination can create an unhealthy working environment even for women who “signed up for it.” The Borgata Babes, employees of an Atlantic City casino, are ostensibly cocktail waitresses, but are hired under strict standards due to their role in branding for the casino (including posing for the annual calendar). Women employees wear skimpy costumes, while the men’s uniform consists of pants, a “club-style t-shirt” and black shoes. Part of their contract prohibits them—and their men counterparts—from gaining more than 7% of their at-hiring body weight and subjects them to additional appearance standards.
In 2013, the Babes brought a lawsuit against the casino saying that they were held to higher standards than their peers and harassed by managers. Women reported incidents like being shamed by a superior for eating a cookie at work or other employees making pig snorts when they walked by. One pregnant waitress said she was subjected to extra weigh-ins by a manager in case she was faking to cover up “just getting fat.” Others said they were told to take laxatives before weigh-ins, or to stop taking medications that caused weight gain.
Overall, 25 women were disciplined for weight gain between 2005 and 2012 and none of the men.
The fact that there were more women than men employed at the casino—making the disciplinary measures seem proportionally fair—as well as the fact that employees had agreed to the weight and appearance standards when they signed their contracts caused the courts to side with the casino instead.
“The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation,” wrote Atlantic County Superior Court Judge Nelson Johnson in his decision. “Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”
Cases of looks-based discrimination are perhaps so difficult to adjudicate because they mash gender norms, racial stereotypes, beauty standards, and employer-employee relationships into a legal quagmire. “Virtually all dress conventions are rooted in some form of gender construction, and this presents an evidentiary nightmare to an already overburdened judiciary,” reads a 2006 article in the Catholic University Law Review. Employers may not see a uniform as a reinforcement of demeaning stereotypes, the article continues, yet just because gender norms exist doesn’t mean the courts have to reinforce them.
For every person who is more comfortable embracing feminine dress, someone else (like that Reno bartender Darlene Jespersen) will feel wrong or objectified. Especially in the restaurant jobs that make the most money—big casino bartenders or trendy New York waitresses—customers often expect that the people they see on the floor will be serving eye candy along with their meals. Seeing attractive servers has become so common that the absence of good looks might seem strange. It’s the same reason why so many Japanese restaurants are staffed with Japanese servers, craft cocktail bars are crewed by bearded and tattooed men, and the idea of a “Hooters for women” feels more like a farcical pipe dream than reality. Breastaurants aren’t the only ones who foster a look—just peek inside any regular restaurant and see what the employees are wearing.
Can a restaurant create a style or theme while hiring and managing employees fairly? Not without some hyper-awareness from management, at least for bartenders and servers whose job it is to know the menu and provide food and drinks. That clause about “bona fide occupational qualifications” was meant for places like Hooters or Playboy clubs where the items customers order are less important than the person serving it. The term doesn’t give restaurants carte blanche to hire the most attractive applicants.
On the surface, it may seem harmless to run a bar with a Prohibition-era vibe, but once that establishment starts hiring employees who look the part—has a beard, looks good in suspenders, has “natural” hair—it’s a slippery slope to exclusion. Subconsciously, a hiring manager might see a well-qualified woman applicant, and feel that she just “doesn’t quite fit what we’re going for.” The same goes for black applicants or the Latinx bar back that’s been there for years without ever getting a promotion. As tempting as it may be to treat restaurants like a Disneyland theme park, employees are not part of the decoration.
If a restaurant really wants to have their employees in cute uniforms, it’s possible—they just need to be conscious of the diversity (or lack of) in the staff they’ve hired to wear them. Restaurants can easily have a specific style without treating hiring like a casting call, but what does the establishment actually gain by requiring or prohibiting certain hair colors and styles? If your carefully crafted cocktail menu can revamp the classics by adding sake, Cholula hot sauce, or bacon-infused bourbon, your menu is already living in the 21st century. It shouldn’t come as a shock that your employees are too.
Tove Danovich is a freelance journalist based in Portland, Oregon. You can find her on Twitter @TKDano or at her website.