Would the 'Hooters defense' have worked for Trump?

trumps women problems origwxGR_00000000
trumps women problems origwxGR_00000000

    JUST WATCHED

    Trump's women problem

MUST WATCH

Trump's women problem 02:19

Story highlights

  • A 2012 lawsuit alleged Trump discriminated against female employees based on appearance
  • Danny Cevallos: Even if it's legal, such discrimination might be unpopular with voters

Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.

(CNN)As criticism mounts of Donald Trump for his disparaging remarks about women, an old lawsuit reinforcing the candidate's troubling record on female employees has emerged. The 2012 lawsuit alleged that Trump wanted to get rid of female hostesses he considered unattractive at one of his golf resorts and replace them with better-looking women.

Danny Cevallos
The allegations are hardly surprising, and they are exacerbated by the fact that Trump has been accused of discriminatory practices before and throughout the campaign. But we shouldn't be that surprised that this kind of thing happens at restaurants from time to time. Psychology studies have found what many businessmen and barflies have long suspected: Waitresses whose customers deem them attractive are likely to generate more money.
    We didn't need a study to know that better-looking people in general have advantages in life. It's not fair, but then again, not a lot of things in life are.
    And if it's not fair, it can't be legal, right?
    Well, not exactly.
    Amanpour: When sexism is part of political discourse
    Amanpour: When sexism is part of political discourse

      JUST WATCHED

      Amanpour: When sexism is part of political discourse

    MUST WATCH

    Amanpour: When sexism is part of political discourse 02:36
    The rules of morality have always covered a wider range of behavioral issues than that of the rules of law. In other words, that which is cruel is not always illegal. While discrimination may be unkind, only a fraction of all discrimination is illegal. And sometimes discriminating against workers based on their attractiveness might even be legal, even if unfair.
    In order to assert a valid Title VII claim for sex discrimination, a plaintiff must establish that what the employer did was either intentionally discriminatory or that it had a discriminatory effect on the basis of gender.
    But appearance standards at a job are not automatically illegal. Looks-based rules that impose different burdens on men and women might be legal if essentially equal. For example, courts have held that companies may impose different hair length requirements on men and women, and may require men but not women to wear neckties. In short, different grooming and dress standards between the sexes is not necessarily sex discrimination under Title VII.
    In addition, Title VII identifies one extremely narrow exception permitting outright discrimination: Gender may be considered when it is a "bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or enterprise." An employer should also be prepared to prove that sex is a legitimate proxy for determining whether a person has the necessary job qualifications for that job. The BFOQ defense comes up in court cases whenever a company tries to ensure their employees are comely in order to give themselves that competitive edge. Airlines and other image-conscious industries have tried, for example, to impose weight standards on females in the past. Surprisingly, weight standards that are different and more burdensome for females could still theoretically be justified as a BFOQ.
    What would be some examples of other legitimate BFOQs? Perhaps the preference of a French restaurant for a French cook, or a professional baseball team preferring male players, or a business that seeks patronage of members of a particular religion looking for a salesman of that religion.
    On the other hand, a restaurant claiming a right to discriminate against males and "unattractive people" because attractive people personify the resort's image? That might be a hard sell to a court.
    In 1997, Trump discussed Alicia Machado's weight
    donald trump alicia machado 1997 3_00004817

      JUST WATCHED

      In 1997, Trump discussed Alicia Machado's weight

    MUST WATCH

    In 1997, Trump discussed Alicia Machado's weight 02:57
    Unless you're Hooters. The "breastaurant" argues that for a "Hooters Girl," a "pretty face" and "sex appeal" are essential. Hooters claims sexy female waitresses are a BFOQ. Analogizing the job to an actor or fashion model, for whom looks might qualify as a BFOQ, Hooters states its waitresses are entertainers who audition for their roles and, once hired, maintain a specific appearance to provide that unique Hooters experience.
    For the most part, Hooters has avoided adjudication of this defense by settling court cases. But the BFOQ defense would be an interesting proposition to a court today, especially in light of the ever-evolving views of gender in our society. Recently, one federal appeals court flat out said that because of the demanding legal standards, BFOQs are "few and far between. In many industries, it is difficult to imagine any jobs that would qualify as BFOQs."
    Similarly, it appears the 2012 case against Trump was settled quietly in 2013 without any admission of wrongdoing. So we won't ever learn if Trump's golf resort could have successfully adapted the "Hooters defense" in asserting a BFOQ.
    Follow CNN Opinion

    Join us on Twitter and Facebook

    Had it proceeded to court, the Trump defense might have been that the more fetching hostesses at the restaurant rose to the level of "entertainers" -- not simply hostesses. This would have been a tough argument to make for three reasons: First, the BFOQ exception is very narrowly, and rarely applied -- some modern courts have difficulty even imagining a legitimate BFOQ. Second, the Trump lawsuit alleged that the unattractive employees were treated differently than the attractive employees, which means that unattractive employees could perform the job as well as the attractive ones -- it's just that the boss didn't want to look at them while they did it, allegedly. That in turn suggests that the supposed policy was linked not just to improved sales but also to appeasing the boss man when he stopped in for a (Trump) steak. This would probably not meet the exacting standards of a BFOQ exception.
    Employer "look" policies are not a thing of the past, though. Just last year the Supreme Court expressly acknowledged them as acceptable, as long as the policy has exceptions for protected classes (like wearing religiously-motivated headgear). At the same time, changing views on gender roles and sexual orientation both socially and in the law may start to chip away at companies' appearance policies. And, even if it is legal for Trump to discriminate on this basis, it's probably not good for public relations. Fairness may not be required by the law in all instances, but it might be required by a voting constituency.