Is Not Being Pregnant a Bona Fide Occupational Qualification for Exotic Dancers?
A bona fide occupational qualification (BFOQ) is a defense to most types of discrimination. If the employer can show that the very nature of the job actually requires the characteristic that is leading to the otherwise illegal discrimination, the employer will have a defense. For example, airlines have argued unsuccessfully that being what was then called a “stewardess,” now called a “flight attendant,” required employees to be female. In a similar situation, a Georgia court has now addressed whether being “not pregnant” is a BFOQ for exotic dancers.
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Georgia Strip Club Accused of Discriminating Against Pregnant Dancer
In Georgia, a woman named Amanda Berry sued a company named The Great American Dream, which does business as Pin Ups. Pin Ups operates strip clubs. It hires dancers based on their appearance and their dancing ability. Amanda Berry danced for Pin Ups, but then in 2012, she got pregnant. A few months later Pin Ups fired her. While Pin Ups has no official written policy banning pregnant dancers, Ms. Berry claims that she was informed by the company that she could not work for them due to her pregnancy.
Strip Club Argues That Sex Appeal Is a BFOQ
The strip club filed a motion for summary judgment. This is a motion that argues that there are no material facts in dispute and that the judge should just go ahead and decide the case based on the law. In this motion, the strip club argued that, even if Ms. Berry was discriminated against because of her pregnancy, that is OK because of the BFOQ defense. The strip club claimed that “sex appeal” is a job requirement for working in such a club and that it is integral to the club’s business.
Court Allows Case to Proceed
The Court noted that in order to support a BFOQ defense a “job qualification must related to the ‘essence’ … or to the ‘central mission of the employer’s business.” To establish such a defense employers are required to show two things: (1) that the sex-based qualification sufficiently relates to the person’s ability to do the job and (2) that the particular duty goes to the essence of the business. Ms. Berry agreed that “sex appeal” goes to the essence of the strip club’s business, but argued that pregnancy is not sufficiently related to that job requirement because pregnant women can still have adequate sex appeal. She argued that this means each individual pregnant dancer must be judged on an individual basis to determine whether she has the requisite sex appeal during her pregnancy, rather than being automatically fired due to pregnancy.
In part because the strip club had not submitted any evidence that Ms. Berry lacked sex appeal due to her pregnancy, it was decided that there is a material question of fact as to her sex appeal, so the case can proceed to trial. The Court also noted that sex appeal itself cannot be the BFOQ. Non-pregnancy would have to be the BFOQ and it would have to be sufficiently related to the job requirement of sex appeal in order to provide a defense.
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Dan Kalish is a partner and founder of HKM Employment Lawyers (www.hkm.com), an employment law firm that represents individuals nationwide. A graduate of Harvard College and Yale Law School, Dan frequently speaks and writes about issues related to employment law on hkm.com/employmentblog.