Cruz Villaraigosa owns and manages The Cruz Cantina, a lively bar and dance club that serves Cuban and other Caribbean-style cuisine. The club has a dance floor, has small tables, and serves outstanding food.
Cruz’s clientele consists mainly of 20 to 40 year old males who frequent the Cantina for its good food as well as the extremely low-cut, Spanish-style blouses worn by the young female servers who bring the food and drinks to the tables. The Cruz Cantina advertises to women and families as well as to young men, but the reputation of the facility is predicated upon the physical attractiveness of the women who Cruz has hired to serve the guests and the uniforms these servers wear.
Ms. Villariagosa employs women and men of all races and nationalities, but all food and drink servers are female. When she elects not to hire a young man for a job as a server, Ms. Villaraigosa is contacted by the young man’s attorney. The attorney alleges the young man has been illegally denied a server’s job at the Cantina because of his gender and that cannot be a bona fide occupational qualification for a food and beverage server position.
Ms. Villaraigosa replies that her operation employs both men and women, but that one necessary job qualification for all servers is that they must be, “attractive to men” and that the qualification of “attractiveness to men” is a legitimate one, given the importance of maintaining the successful image, atmosphere, and resulting business the Cantina enjoys. She maintains that the servers not only serve food and beverages but also play a role in advertising and marketing the unique features of the Cantina. Ms. Villaraigosa also maintains that attractiveness is indeed an occupational characteristic that she can use to promote her facility, citing modeling agencies and TV casting agents as examples of employers who routinely use attractiveness as a means of selecting employees. She states that her right to chose employees she feels will best benefit her business is unconditional as long as she does not unfairly discriminate against a protected class of workers.
1. Do you think that the requirement that servers be “attractive to males” is a bona fide occupational requirement, and “necessary” for the continued successful operation of The Cruz Cantina?
2. If you were on a jury, would you allow Ms. Villaraigosa to hire female servers exclusively if she so desired? Why or why not?
3. What damages, if any, do you feel the male job applicant not selected for employment at the Cantina would be entitled to?