Received a question from a reader:
Can a Hooters waitress sue for sexual harassment?
This is a complicated and interesting question. The Smoking Gun published a copy of the consent form that "Hooters Girls," as they are called, must sign. In it, waitresses must agree that they do not find the skimpy uniform offensive, that they recognize that they are required to "entertain" customers and do not find an atmosphere full of sexual innuendo offensive. It does look like Hooters waitresses give up their rights to be free from sexual harassment in the workplace.
But do they?
Generally speaking, there are two types of sexual harassment: Quid-Pro-Quo and Hostile Work Environment.
Quid-Pro-Quo refers to instances such as your supervisor offering you a promotion if you sleep with him. Hooters employment contract does not cover this type of sexual harassment; if a manager offered a waitress any benefits or perks in return for sexual favors, he is not covered by her supposed waiver.
Hostile Work Environment is exactly what Hooters creates; therefore, they want the women to waive their rights protecting them from sexual comments, jokes, banter and innuendo. (Unwanted touching at work is also considered sexual harassment in the form of hostile work environment.) One defense employers sometimes claim when faced with a sexual harassment suit is that the employee seemed to welcome the attention. In the case of Hooters, she signed a form saying she was fine with it.
Professor Eugene Volokh of the UCLA School of Law wrote Harassment Law and Free Speech Doctrine, which touches on this issue:
"Speech That's Part of the Employer's Business: An even more serious problem arises if the speech that creates the hostile work environment is an inherent part of the employer's business. A store's decision to stock (or specialize in) racist or sexist or religiously offensive literature could easily create a hostile work environment for many employees."
Hooters sexual foreplay is a part of their business model. Prof. Volokh goes on to give examples:
"Thus, one employee filed a sexual harassment suit against her employer, a convenience store company, for stocking pornographic magazines in the store which she managed; the suit is now pending. 97 ... Several employees of Stroh's brewery have recently sued their employer for workplace sexual harassment that was allegedly caused by the employer's ads, which feature women in bikinis. Part of the remedy that the employees seek is the discontinuation of the ads. 99"
The Equal Employment Opportunity Commission ("EEOC") Notice No. 915.002 makes clear that an employer may not interfere with an employee's filing of a complaint with the EEOC. Sexual harassment claims are brought before the EEOC before being filed with the courts. An employee is not able to waive her right to file a sexual harassment suit.
This may be a gray area for Hooters; the form the waitress signed said she did not find the sexually charged atmosphere and her revealing "clothing" offensive. The form, however, does not say she can not file a sexual harassment suit. Similar to the recent Tilted Kilt fiasco, I expect (and this is my opinion) that the EEOC would approve the complaint and the details would be argued in court.
The form Hooters waitresses sign probably does more to intimidate them from complaining than anything else. Being asked to lick beans off of a plate with hands tied behind their backs was not in the Hooters waitress job description (I hope.) At the same time, they did it because they'd signed a form saying they were comfortable with sexual innuendo. Had a bean-licking waitress complained, I think she would have been taken seriously.
I would encourage any Hooters waitress who feels she has a sexual harassment complaint to act on it. A good first step is talking to a lawyer in the same state.
I hope this helps. For the record, none of this is legal advice. As a matter of fact, I'm not even a lawyer. I'm just a stupid waitress. ;-)