The Right to Work at Hooters? by Ninos P. Malek

[Stephane Budge]

"He wants to serve food and earn tips and why can't he?"

So argues Martin A. Shellist, attorney for Nikolai Grushevski, a
citizen of Corpus Christi, Texas, who filed a gender-discrimination
lawsuit after Hooters denied him a job as a server at the chain
restaurant.

A similar case in 1997 resulted in Hooters paying out a $3.75 million
settlement to reconcile the matter. Title VII of the Civil Rights Act
of 1964 prohibits discrimination based on race, color, religion, sex,
or national origin. The case of Grushevski challenges whether or not
it is a bona fide occupational qualification for one to be female in
order to work as a food server; if so, then it is legally permissible
for Hooters to discriminate against males.

Considering Hooters' trademark is the young, attractive female
waitress, it is conceivable that this man — or any man for that matter
— would not earn much in tips should Hooters be forced to hire male
servers. Moreover, if Grushevski truly wants employment as a food
server, there are plenty of other restaurants where he can apply or he
can start his own restaurant.

It is obvious that this is either a frivolous law suit or a publicity
stunt. It will be a waste of both time and tax dollars for the court
to take this outlandish case. While Title VII may be valid when
applied to those running for public office or applying for government
positions, its provisions are not appropriate in the private sector.
It is indeed immoral and unacceptable to legally permit malicious or
discriminately harmful behavior against a person based on a
characteristic or belief. The Jim Crow laws, for instance, exhibit a
serious and immoral blunder in our nation's history for enforcing race
discrimination.

But in the case of a private entity such as Hooters, Title VII should
not enforce a "right-to-work" policy. If private property cannot be
used in the manner that the owner or company sees fit (excluding using
that property to violate someone else's property or personal rights)
then it is rendered impotent. Private property should mean true
ownership.

Another point to consider is whether individuals have the right to
adversely affect the feelings and thoughts of others.

For example, a person may hate people of Middle Eastern or Hispanic
origin, or even Christians. This hatred is unpleasant, but I won't
object if it does not lead to physical harm or property destruction.
In a free society, to harm someone is to violate their rights to
privacy and property. So, to harm someone requires taking away or
denying them something that belonged to them in the first place.
Working for a privately owned business is not a right; consequently,
the job never belonged to the applicant in the first place. Hooters is
not hurting men with their policy because it is not a man's right to
wear the orange shorts and white tank top. Conversely, Hooters does
not owe anybody a job or have a duty to hire people.

"Hooters is not hurting men with their policy because it is not a
man's right to wear the orange shorts and white tank top. "
Harvard economist Robert Barro observes that appearance is just as
valid a criterion for hiring someone as intelligence, ability, and
experience. The truth is that a property owner (business) can choose
any criterion for deciding whom to hire. While it is true that one
does not have to be a woman to serve food, Hooters has every right to
require that its servers be women. Indeed, requiring Hooters to hire
male servers equates to making the Dallas Cowboys hire men for the
cheerleading squad. Hooters Girls are a trademark, much like the
Dallas Cowboys Cheerleaders, The Rockettes, or Victoria's Secret
models are trademarks for their respective organizations.

Hooters should not only have the legal right to hire only female
servers but also those that it subjectively decides are attractive. If
Hooters' policy is to hire only young African-American women or "All-
American" blonde Caucasian women or only brunettes with a certain hair
length, eye color, height, and breast size, then that is perfectly
legitimate. Again, a woman who doesn't fit the company's criteria is
not hurt by not getting a job because it was never hers to have in the
first place.

People have the legal right to associate with whomever they wish in
their personal lives: they can "hire" whomever they wish as friends or
romantic partners. They ought to be able to do the same in their place
of business (assuming the business is not receiving any government
subsidies).

Incidentally, it is legal for a potential employee to discriminate
against a potential employer based on whatever criteria the employee
deems valid. Hooters cannot sue a woman for not accepting a job offer
because the manager or other employees have certain physical
characteristics or racial backgrounds that the applicant finds
objectionable. Why the double standard?

Suppose I defined "attractive" as a physically fit, well-proportioned,
long-blonde-haired woman who could be a NFL cheerleader or Victoria's
Secret model. Further suppose I owned an engineering consulting firm
and I only wanted to hire women who are the blonde beauties I
described or only women who look like actress Megan Fox. In a free
society, I would have the right to hire only these types of women, but
my business would probably fail if they were unqualified as engineers.
I would pay a steep price for indulging in my preferences because I
turned away the qualified and profit-enhancing applicants.
Hypothetically, if there were enough attractive, blonde women or Megan
Fox types that were qualified as engineers, then I could achieve my
goals without hurting other applicants, because, again, they had no
right to the job in the first place.

In a free society, Mr. Grushevski has every right to be
entrepreneurial and to start a restaurant that only hires men who want
to serve food in tank tops and shorts. I support his right to do this
and I would take his side against any government that tried to stop
him.

How far this case will go in the courtroom remains to be seen, but,
regardless of the outcome, it remains clear that the notion of a right
to a job is an affront to true freedom and private property. In a real
free-enterprise economy, there would be no Equal Employment
Opportunity Commission (EEOC). Everyone in such an economy would have
the opportunity to pursue their own dreams and enterprise without
government interference.