This week, Hooters, one of America’s top owl-themed casual dining chains, revealed a new uniform policy for its food servers. Surprisingly, the new uniforms feature even skimpier shorts.
Angry Hooters servers took to TikTok to decry the new uniforms (although some reported making more money with the new gear), pointing out that they’re basically like underwear and sort of gross. After millions of TikTok views and a minor media uproar, Hooter’s reversed course.
“As we continue to listen and update the image of the Hooters Girls, we are clarifying that they have the option to choose from traditional uniforms or the new ones,” a spokesperson for the company wrote Business Insider. “They can determine which style of shorts best fits their body style and personal image.”
The entire imbroglio — which, like everything, could be a publicity stunt working as intended — got me thinking about the legality of forcing employees to wear sexy clothing, so I asked Chicago employment attorney Wesley Johnson. Full disclosure: Wesley is my older, clearly more successful, brother.
Can employers force employees to wear sexy clothes?
“Laws regarding what employers can compel their employees to wear vary from state to state, and even city to city, but in general, whether an employer can mandate suggestive clothing depends on the type of business,” Johnson said.
“The prevailing legal view is that a strip club, or a restaurant like Hooters, can require its employees who interact with the public to wear this kind of uniform, as long as it doesn’t violate discrimination laws, obscenity statutes, or other labour laws, where they can claim a legitimate business reason for the uniform or dress code,” Johnson said.
Why aren’t there dudes in jock-straps serving food at Hooters?
Hooters doesn’t employ men as food servers (except at their spin-off chain, Hoots), which might seem like gender-based discrimination under Title VII of the Civil Rights Act, but Title VII has an “out.” Companies are allowed to discriminate on the basis of religion, sex, or national origin “in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.”
Basically, Hooters wouldn’t be Hooters without female food-servers in short-shorts, so the company isn’t obligated to hire men to serve food and can require uniforms that might not fly at another kind of business. “Hooters has an arguably legitimate business reason to have sexy waitresses. A real estate agency doesn’t,” Johnson explained.
But what if your boss really wants you to work in a French Maid outfit?
If employers are (generally) allowed to mandate their employees’ clothing, makeup, and grooming, why can’t a real estate company have a policy of sexy brokers in mini-skirts?
“That’s kind of different because you are getting into discrimination,” Johnson said. “If you claimed the required uniform for your writing job, say, subjected you to sexual harassment or constituted discrimination and had no legitimate business purpose, it would ultimately be a question for a jury.”
Mandatory work clothes do not usually need to be gender-neutral
Differences in clothing and grooming for male and female employees are generally regarded as legally OK (depending on where you live), as long as no unfair burden is placed on one group. But what constitutes an “unfair burden” is debatable.
In 2005, a case was decided by the Ninth Circuit Court over a Harrah’s casino policy that required women beverage servers to wear makeup, hosiery and coloured nail polish, and have “teased, curled, or styled” hair. Male beverage servers were only required to have short haircuts and neatly trimmed nails. The court ruled that the makeup and grooming requirements did not impose an unfair burden on women employed as servers at Harrah’s.
What about men who want to wear makeup?
Your employer could likely prohibit male employees from wearing makeup in the same way they could require female employees to wear makeup. But this might not apply if the employee is transgender. “Under recent Supreme court precedent, if you were transgender person, they’d probably have to let you wear makeup,” Johnson said. “That’s based on Bostock v. Clayton County, 140 S. Ct. 1731 (2020), a Supreme Court decision that held that employers can’t fire an employee for being gay or transgender.”
Would the imaginary restaurant O’Nutters be discriminatory?
I ran the video of imaginary casual dining restaurant O’Nutters from Inside Amy Schumer past Johnson to get his legal opinion on the place.
“If you can open a Hooters you ought to be able to open O’Nutters,” Johnson said. “Whether you could get away with O’Nutters would most likely come down to a liquor licence question. Although I did find the ‘wet nut contest’ personally objectionable, I think O’Nutters is a promising business idea.”