You’re probably aware that employers are legally forbidden to discriminate on the basis of race, gender, sex, national origin, marital status, disability, or religion (among other protected classes) when they hire. You’re probably also aware that restaurant chains like Hooters have no male or elderly servers. Hooters was sued by the government over this and settled the matter for almost four million dollars and an agreement to hire more males for non-server positions. In the food service business, image matters and business owners have a narrow exception known as “bona fide occupational qualification” (BFOQ) defense. This defense, however, is not a license for restaurants and bars to discriminate against its employees.
You’re probably aware that employers are legally forbidden to discriminate on the basis of race, gender, sex, national origin, marital status, disability, or religion (among other protected classes) when they hire. You’re probably also aware that restaurant chains like Hooters have no male or elderly servers. Hooters was sued by the government over this and settled the matter for almost four million dollars and an agreement to hire more males for non-server positions. In the food service business, image matters and business owners have a narrow exception known as “bona fide occupational qualification” (BFOQ) defense. This defense, however, is not a license for restaurants and bars to discriminate against its employees.
1. Race
Race is not a bona fide occupational qualification. McDonald’s franchisees and the company itself were recently sued for firing non-white staff in an attempt to prevent the restaurant from appearing too “urban.” A chain in Oklahoma was also charged for permitting a hostile racial environment to exist at one of its restaurants. If you believe you were either not hired or terminated because of your race or ethnicity, you should discuss the matter with an attorney.
2. Disability
Work in the food and beverage industry is very demanding. Workers must be on their feet, deal with noise and crowds, while carrying trays loaded with dishes. This, however, does not mean that employers do not have to reasonably accommodate employees with disabilities. For instance, the Equal Employment Opportunity Commission recently fined Wendy’s for failing to consider accommodations for a deaf applicant who was seeking a position as a manager and whom the company had labeled as “unable to communicate.” Wearing a brace, having a missing limb or other disfigurement, or being deaf does not necessarily mean you can’t do the job or have to work out of public view. Your employer must still accommodate you in the work environment. They cannot arbitrarily dismiss requests for accommodations or dismiss you simply because you either have a permanent or temporary disability without fairly analyzing its impact.
3. Hostile Environment
You don’t have to be fired or not-hired to be the victim of discrimination in the food and beverage industry. If you believe that your employer maintains or permits an environment that promotes harassment, discrimination, or intimidation based on race, ethnicity, gender, or gender orientation, you should not just deal with it. You have a right to address the situation and demand that it end, so you can work in a harassment-free environment.
4. Age
There is only one establishment that an employer can base employment on age – a bar or restaurant serving alcohol. Otherwise, your age is not a reason for either terminating you from a position or refusing to hire you. Looking or acting youthful or older, however, may be a bona fide occupational qualification. It can be quite difficult to sort out the difference, but if you believe that you have been laid off or not-hired simply due to your age, you might want to discuss it with an attorney.
5. Trans-gender
In the past, you may have assumed that it’s not your right to be yourself at work. Not all food and beverage jobs involve direct contact with customers and in many establishments, gender orientation would not impact bona fide occupational qualifications. This situation can be difficult to figure out though, so speak with an employment law attorney in New Jersey if you feel as though your employment has been affected by gender orientation.
Understanding Bona Fide Occupational Qualification (BFOQ)
BFOQ, a part of the Federal Civil Rights Act, is often misunderstood and frequently misapplied by employers. Due to BFOQ, employers may consider race, gender, age, religion, and disability if the characteristic is necessary to the success of the business and a definable group of possible employees cannot perform the job safely and efficiently. The employer is the one who has the burden of proving this. For example, airlines may have a mandatory retirement age for pilots for safety reasons, but it can no longer require that flight attendants be female, below a certain weight, or under 35 years old. A kosher restaurant might be able to insist that its cooks be Jewish, but the same might not be true for the cashier or the dishwasher.
Contact an Experienced Lawyer to Learn More About Discrimination in New Jersey
Customer preference alone is not sufficient for an employer to claim BFOQ. The employer must show a clear relationship between the characteristic and the success of the business. If you feel like you’ve been denied a job or were terminated from a job in the food and beverage industry or are working in a hostile racial/gender environment, you should get the advice of someone who knows the law and knows the process. John J. Zidziunas & Associates has a team of New Jersey employment discrimination attorneys available to confidentially review your case. For further information, call 973-509-8500, email info@jjzlawfirm.com, or visit http://employmentdiscrimination.com/.
Image courtesy of supkakit73 from FreeDigitalPhotos.net