The latest legal effort to bust open Hooters' hiring policy has ended with a settlement of a Texas man's class action lawsuit against the restaurant chain for refusing to hire men as waiters.

The case challenged Hooters of America's “core concept” of using well-endowed waitresses to “titillate and entice” male customers. Nikolai Grushevski filed his complaint in January after a Hooters franchisee in Corpus Christi, Texas, allegedly rejected his application for a waiter job because he is male.

Hooters seemed to have a strong defense of “bona-fide occupational qualification” (BFOQ), which applies when the “essence of the business operation would be undermined if the business eliminated its discriminatory policy.”

But court records show the parties reached a confidential settlement at a mediation April 13. Hooters attorney Stanford G. Wilson did not respond to a request for comment, but it's a safe bet that Hooters did not agree to any change in its hiring policy as a condition of the settlement.

In 1997, the company resolved three similar class actions challenging its right to hire only women in front-of-house positions. That settlement required no change in policy, acknowledging that "being female is reasonably necessary" to the performance of the Hooters Girl's job duties.

Hooters' VP of marketing has said of Grushevski's suit: “If we lose this go around, you can next expect hairy-legged guys in the Rockettes to line up and male models in the Sports Illustrated swimsuit issue."

Grushevski was seeking class-action status on behalf of “all males across the country who applied for the position of waiter at a Hooters restaurant and were denied same.” He also suggested it might be appropriate for all Hooters franchisees to be certified as a defendant class.

“It is expected that discovery will reveal that, among other things, refusing to hire men to be waiters is a condition of receiving a Hooters franchise,” he said in a court brief.

The case settled before a judge ruled on the discovery request and the settlement applies only to the Corpus Christi franchisee. Hooters had argued that the 1997 settlement -– with its acknowledgement of Hooters' hiring policy –- barred Grushevski's claims.

Playboy successfully deployed the BFOQ defense against discrimination claims involving its Bunny Girls. But Grushevski, who sued under Title VII of the federal Civil Rights Act, cited a case in which a Texas judge ruled that Southwest Airlines -– back in its racy “Love Airline” era -- discriminated against men by hiring only “attractive females” as flight attendants.

By Matthew Heller
4/19/09