How Restaurants like Tilted Kilt Can Hire Based on Looks

I’ve been wondering: Why doesn’t anyone sue restaurants that hire waiters and waitress based on their looks?

The legal test case goes like this: You are in charge of casting the Broadway musical Annie. You are looking for a young person who can sing and dance, someone with a lot of personality. But most of all, you are looking for someone with red hair. If you’re going to sell tickets, you’ve got to have a redhead in the lead role.

If an elderly person with gray hair shows up to your casting call—let’s say she can sing and dance like Ginger Rogers—you can be excused for not giving her the title role. In the case of Annie, lawyers would call red hair a bona fide occupational qualification, a BFOQ. It means the employer is in the clear for hiring a person based on her appearance because the job requires a certain characteristic—in this case, a carrot top.

This is how restaurants like Tilted Kilt on The Avenue in White Marsh can hire waitresses with a certain body type. The Civil Rights Act of 1964 and its antecedents prohibit employment discrimination based on race, color, gender, national origin, age, disability, religion and several other factors. But there is no federal law against hiring someone based on other factors of physical appearance, such as body type or hair style, explained University of Baltimore law professor Nancy M. Modesitt.

Throughout the United States, hiring and firing is based on the principle of “employment at will,” which ostensibly allows employers to hire and fire as they please. Categories outlawed by anti-discrimination laws are exceptions to employment at will, and “how one looks is not one of those excluded considerations,” Modesitt said.

That hasn’t kept Hooters from getting sued lots and lots of times. But the restaurant has always been able to successfully argue that sex appeal is part of its product. So, hiring women with a certain body type is integral to business, just like the redhead is integral to Annie.

Southwest Airlines tried a similar argument in the early 1980s, when its policy of hiring only women as flight attendants (their uniform included hot pants and go-go boots) came under legal challenge. The airline tried to argue that sex appeal was part of its business model, and lost. The business model, the court said, was cheap airfares, and Southwest had to start hiring male stewards, who presumably did not have to wear the hot pants.

Tilted Kilt, though, can make the argument that has worked for Hooters: it’s definitely not the bar food that brings customers through the door. I don’t like Tilted Kilt, not because of its business model, but because of its location at The Avenue.

I’m unhappy with Federal Realty, the company that owns The (supposedly family-friendly) Avenue, for sanctioning a business that puts sex appeal ahead of chicken wings. But federal hiring laws can’t prevent tacky waitress uniforms in White Marsh. Neither can state or county law.

Interestingly, Howard County doesn’t have a single Hooters or a Tilted Kilt. Modesitt points out that Howard, like a lot of other localities across the country, has an expanded equal opportunity employment law that covers discrimination based on physical appearance.

Maybe we could make our local law read like that, and ship the Celtic Hooters back where it came from, which, according to the restaurant’s Web site, is “America’s own city of sin, Las Vegas.” At least we know they’re not using “classiness” as a business model.