Booze, wild beaver, and a pregnant bartender. What!

March 25, 2011
By Eric B. Meyer on March 25, 2011 6:00 AM | | Comments

beaver.jpgCongratulations!

Because you are reading this post, you somehow made it past your company's internet firewall. That, or you're a horny perv, Googling some effed-up search terms. But I'm a lawyer; I don't judge.

Either way, continue reading. 

After the jump, it's the female bartender/server who is now suing her employer, the Wild Beaver Saloon, *** borderline-NSFW link *** because she claims they fired her for getting pregnant!

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Welcome to the "2nd Happiest Place on Earth"

Well, at least that's how the Wild Beaver Saloon bills itself *** again, borderline-NSFW link ***. According to the website, the bar's slogan is "Come Sing-Along, Drink-Along & Rock-Along" and they mean it:

You can't help but smile when you walk into our Colorado Mountain themed beaver den. Our staff is extremely friendly and are always eager beavers to make you feel right at home. Yes it's true, our Beaverettes dance on the bar and on good nights the customers do too. Keep an eye out for us. We might be gnawing to a city near you. So come on down and have a drink!

Sounds like my kind of place a den of iniquity within which I would not step foot for fear of giant raccoons shooting exploding snakes from their eyes in order to escape my stomach. In any event, the Wild Beaver Saloon is now the target of a federal-court complaint, which the United States Equal Employment Opportunity Commission has filed on behalf of a former employee. The EEOC claims that Heather Gibson, a former bartender/server at the Beave -- the complaint is silent about whether she is a "Beaverette" -- ***damn you, federal court notice-pleading! *** was fired because she got pregnant.

You can read a copy of the complaint here.

You can read a copy of the EEOC press release here.


Can the Wild Beaver Saloon legally fire a pregnant bartender?

Sure, assuming that neither the bartender's sex nor her pregnancy was the reason for the termination. Indeed, if the Wild Beaver Saloon had a non-pretextual, legitimate business reason for firing Ms. Gibson -- for example, she had attendance or performance issues -- then that is ok. Otherwise, when an employer takes an adverse employment action against a pregnant employee, because of her pregnancy, it denies that employee equal employment opportunities because of her sex and, therefore, violates Title VII of the Civil Rights Act of 1964.

I have no idea why Wild Beaver Saloon fired Ms. Gibson. We don't yet know the employer's side of the story. But, what if, Wild Beaver Saloon truly fired Ms. Gibson because she was pregnant? Could the bar still prevail? If the bar can establish that being a non-pregnant woman is a bona-fide occupational qualification (BFOQ), then I suppose it could.

Here in the Third Circuit (PA, NJ, DE, USVI) -- the Gibson case is pending in Indiana -- an employer has an absolute defense to a Title VII discrimination claim if it proves the following two elements by a preponderance of the evidence:

  1. The occupational qualification that the employer relied upon is reasonably necessary for the normal operation of the employer's business.

  2. The employer had reasonable cause to believe that substantially all persons in the protected class would be unable to perform the job safely and efficiently, or that it was impossible or highly impractical to consider the necessary qualifications of each person in the protected class. The employer's belief should be evaluated in light of all the circumstances in the case, to determine whether it has a reasonable basis in fact.

Both in and outside of the Third Circuit, BFOQs are very narrow and can be difficult to prove. In Lanvin v. Delta Air Lines, Inc., the Fifth Circuit found that the BFOQ of not being pregnant was reasonably necessary to the normal operation of airline flights by substantially reducing the risk of air travel. Yet, the U.S. Supreme Court, in Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, found no BFOQ where the employer refused to allow female employees who may become pregnant to work with potentially hazardous materials, because it was concerned about the effect the materials may have on an unborn fetus.


But what about a BFOQ based on customer preference?

beave.jpg

Oh, come on folks! Like that thought didn't cross your mind. You think a bunch of horny, beer-swilling, shot-pounding, drunk men want to look at bartenders and waitresses with baby bumps?

Or do they want to look at these girls? Doesn't customer preference count for anything? Isn't that in the Constitution, somewhere in the 21st Amendment when we repealed prohibition?


* * *

"Senator Douglas (D-PA): I yield the floor to the gentleman from New York."

"Senator Randolph (R-NY): I say. I say. May Ambrosia's nectar flow freely again from vessels served by ample-chested beer wenches."

"F%ckin' A, right!"

"U-S-A! U-S-A!"

* * *

What were we talking about again? Oh yeah, BFOQ's.

According to the EEOC Compliance Manual, "[i]f an employer takes an action based on the discriminatory preferences of others, including co-workers or clients, the employer is unlawfully discriminating." Relying on the EEOC guidelines, the Fifth Circuit in Diaz v. Pan Am. World Airways, Inc., noted that a BFOQ ought not to be based on "the refusal to hire an individual because of the preferences of co-workers, the employer, clients or customers." Just ask Hooters which, many years ago, settled a lawsuit brought by men who claimed that they were denied jobs with the restaurant chain.

Therefore, it would appear as if Wild Beaver Saloon better have a legitimate reason for firing Ms. Gibson. That, or some deep pockets.


Enjoy some Primus and have a nice weekend.


Photo Credit: FunCityFinder.com