Excerpted from Texas Employment Law Letter, written by attorneys at the law firm Ford & Harrison LLP

May 27, 2005

On March 22, the Dallas office of the Equal Employment Opportunity Commission (EEOC) sued Irving, Texas-based Razzoo's Cajun Café for sex discrimination. It's a case with an odd twist, though: The EEOC is claiming that males are the victims - and females the beneficiaries - of the discrimination.

Bellying up to the bar

Let's first talk about what the EEOC is claiming. The EEOC suit says that the restaurant chain violated the law through a pattern and practice of firing or refusing to hire and/or promote men for bartender positions. Its evidence? The commission says that Razzoo's had a policy of creating a ratio of 80 percent females to 20 percent males for its bartending staff and that it systematically whittled down its male bartender numbers until they came in line with the mandated gender ratio.

According to the EEOC regional attorney, "Just because a manager or a corporate office believes that a certain race, gender, age or other demographic 'type' is 'what the customers want,' that does not justify discriminatory practices such as this." The suit is a class action, and the commission is seeking relief for all former male bartenders and qualified male applicants for bartender positions.

The company blasted back, denying in a written statement that it discriminates and saying that it has always provided equal opportunity for all applicants and employees. It will now be up to the court, and perhaps a jury, to decide who's right.

Bottoms up

This case raises several important points.

First, the EEOC is big on cases with marquee value; it makes for a good press release (not to mention a newsletter article) to talk about males being discriminated against in favor of females (sort of like man bites dog). So if you have facts like these, you too may be the subject of an EEOC suit. Beware.

Second, seldom is a person's sex a qualification for a job, although in rare instances it may be. For example, just this past year, a court in the Midwest found that it's legal to exclude male employees from working as correctional officers at a female prison because of privacy and security issues. Yet the exception proves the rule. For instance, favoring one gender over another is still unlawful even when based on an employer's concern for the safety of its female employees.

In one famous case, a battery manufacturer enacted a policy prohibiting pregnant women and women capable of bearing children from working in jobs involving lead exposure. The rule's purpose was humanitarian: to protect against any risk or harm to fetuses that female employees might conceive. While the policy was well intended, the court said it was illegal because it wasn't reasonably necessary for the normal production of batteries. To put it another way, fertile women were as efficient manufacturing batteries as anyone else.

Third, is it ever lawful to take into consideration the request of customers in deciding whether to hire males or females? We don't think so. Remember Texas-based Southwest Airlines' refusal back in the 1970s to hire male flight attendants? Southwest believed that its mostly male and mostly business passengers preferred young women as flight attendants, arguing it would lose business if the flight attendant position became a coed job. That argument went the way of the go-go boots and miniskirts once worn by the flight attendants.

Fourth, this case is a timely reminder that victimized males can sue. It happens, and - when doing your risk assessments - you need to list males as a protected group. For instance, a male is accused of sexual harassment. The female accuser gets an in-depth investigation of her story by the employer, but the male employee gets a bum's rush on his version. In that circumstance (and we've seen it), the male can claim sex discrimination. Remember: Middle-aged white men are a protected class, too.

And finally, while you certainly can have outreach programs to increase the diversity of your workforce, be careful about going over the line. Aspirations are fine; quotas aren't. When you find yourself sliding toward the second and away from the first, put on the brakes and reevaluate.

Copyright © 2005 M. Lee Smith Publishers LLC. The above article was contributed by TEXAS EMPLOYMENT LAW LETTER. Click here to read more about the print newsletter and its editors. Texas Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide information about current developments in Texas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. The State Bar of Texas does designate attorneys as board certified in labor law.

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