A man posed this question in a recent Facebook post regarding the hiring practices of a long-time Ludington business, the Old Hamlin Restaurant, showing the exchange between the personnel director and a male applicant.

"Looking for opinions.....

Is the owner guilty of discrimination for denying employment based on one's gender or is her excuse valid and a case of "justifiable discrimination"?"

The site it was placed at "Ludington Cares" is one designed to connect those who want to donate something with those that need that something; it typically isn't a forum to get opinions on an employment law issue.  It generated some discussions and some interesting opinions that often were diverse and inconclusive, before the administrators turned off comments.

The most popular observation was that the local Dairy Queen seems to have had a similar policy through the years, which is something that I think most locals notice.  For as far back as I can remember, the DQ always seemed to hire attractive young girls, and several times that factor may have compelled others like myself to consider stopping there. 

My understanding was that the owner was involved with Ludington cheerleaders and she gave them first choice at filling job openings.  Not a bad idea since not only may they attract more male customers, but they would be less likely to eat a lot of the profits (as they must keep their cheerleader form intact).  But is that and what they are doing at Old Hamlin discriminatory?

Mike Fitch was of the opinion that either clearly violated Equal Employment Opportunity (EEO) laws, especially Title VII of the 1964 Civil Rights Act

Others thought that the hirer's interest in keeping unintentional sexual harassment from taking place was a proper goal, and that the appendage "yet" as to why they weren't hiring guys perhaps signaled that they were attempting to correct the problem that made close quarter contacts a problem.  Other observations either fell between these views or supported them.  

This can be a foggy area of the law.  Title VII lawsuits happen regularly enough that there is established precedent over many situations, but I think it is important to note that employers do sometimes have the right to discriminate on the basis of factors that would normally qualify as being violative of Title VII's anti-discrimination language.  These are called "Bona fide occupation qualifications" or BFOQs and should always be listed in the job offering beforehand.  

Playboy bunnies and Chippendale dancers are good examples of BFOQs where the sex of the individual is very important to the candidate.  Breastaurants, like Hooters, have had some success in claiming that a man can't take the place of an amply-chested female in hot pants serving your wings, and have settled a couple of lawsuits over the years, and kept their practice of hiring only female servers intact.  

Considering actors and models may also be considered BFOQs for employers, as most directors would not want Morgan Freeman playing the part of Taylor Swift in a movie, and most clothing designers would have their sales affected if they trotted out models that were inappropriate for the clothes being sold.  A use of the BFOQ defense may also be appropriate if you wish to avoid liability that can arise when you mix the sexes:

So, it would seem to be conceivable that Old Hamlin may have a valid line of defense in trying to prevent additional problems occurring within the narrow confines of their work space, rather than discriminating unlawfully.  The additional factors that would need to be considered is whether their claim is accurate about the work area, whether they fail to hire men for other positions, and what they are attempting in order to get rid of that word 'yet'.  

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The first picture at the top clearly shows the short width between refrigeration units and the main stool counter. It is definitely narrow, and sitting there many times I have witnessed the waitresses sliding past one another and touching often, therefore, their claim is accurate. Whether or not it's legal is another question. Why doesn't the man apply for cooking or washing dishes instead? Both positions are mainly occupied by males, and it certainly pays better too. All too many facebook threads are weak and offensive to cause chaos, and I believe this is another example of such.

Interesting that picture shows a man behind the counter. Maybe he's the only man (assuming maybe he's the boss?) that can be rubbed against by the female waitresses! Ha ha!! Now that's a real case for discrimation.

WOW, if a lawyer like Jeffery Figer got ahold of this...….. Only reason so much BS is allowed there is because we all don't have deep pockets and a media that would support with news stories airing on tv!

I'm thinking that even a good lawyer like Feiger would have a hard time proving a discrimination claim based on what has been presented.  I think the biggest potential legal liability that Old Hamlin faces is if they don't have a consistent hiring policy based on their stated reason for 'sex discriminating' that suggests all servers must be of the same sex, rather than they must all be female.

Although I do enjoy wrangling over legal questions, I'm also getting tired of people crying discrimination every time they don't get their way. I agree with Aquaman, the offended gentlemen may be more suited to kitchen duties. It is refreshing how honestly Old Hamlin stated their case, not trying to side step the question.

The only way he would have a discrimination case is if he was a illegal or black guy. Then he would get Glancy to represent him for free.

The job applicant should claim that he identifies with one of the newly discovered 57 genders that have come out, therefore he is not a risk to cop an inadvertent feel. As long as he doesn't identify with being a lesbian in a man's body he should be good to go.

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