Let’s talk about pregnant-stripper bias. And BFOQs too. Mostly, BFOQs.

I know what some of you are thinking, “Seems more like a Tuesday topic to me.” To you folks I say, “Get the hell out of here! YOU’RE NUTS!!!”

Ok, you’re right, let’s start over.

One of the exotic dancers at a Georgia gentlemen’s club got preggers. Wait. Do the kids still say preggers? Yeah, let’s try and be mature about the serious Monday post. A woman who gyrates on stage for dollars, and maybe on customers’ laps too — I don’t know for sure — got pregnant. Hey, look, I’m not judging.

Two months later, she lost her job.

The woman claimed that her employment was terminated due to her pregnancy in violation of Title VII.

Don't forget NJ, ban the box went into effect yesterday.

Don’t forget NJ!, Ban the box 
went into effect yesterday.

[Before continuing with this doozie, last Friday I offered up free copies of an FMLA/ADA/WC webinar I gave the day before. That offer still stands. Email me and I got your hook up.]

The club claimed that it had a good reason for firing the pregnant dancer (failing to pay a house fee). But, then it went one step further with this argument, claiming that even if the Plaintiff was fired due to her pregnancy, the discharge was justified under the bona fide occupational qualification (BFOQ) exception under Title VII.

Let’s explain the BFOQ defense.

Title VII permits employers to hire and employ employees on the basis of sex if sex is a BFOQ reasonably necessary to the normal operation of that particular business or enterprise.

For a BFOQ defense to fly, the employer-defendant has to establish that the BFOQ, here, sex appeal achieved through no bun in the oven, is a job qualification that’s essential to the employer’s business and relates to the employee’s ability to perform the job.

Here, non-pregnancy may not be a BFOQ.

Well, the plaintiff conceded that sex appeal is an essential part of being an exotic dancer. However, she argued that pregnant women have sex appeal too. Indeed, the club had no official, written policy concerning pregnant dancers, and many entertainers had worked for the club while pregnant. And, then, there was the testimony from the plaintiff’s co-workers:

“Both testified that many clients often prefer (and request) dancers with ‘thicker’ bodies. Additionally, Sheffield testified that when a dancer becomes pregnant, she is generally not terminated, but rather asked to dance on the floor instead of on stage. In fact, Sheffield testified that one dancer continued her employment up until she was eight months pregnant.”

Based on the foregoing, the Court (opinion here) could not conclude that sex appeal/non-pregnancy was a BFOQ. And then it rubbed salt in the employer’s wound with a final footnote:

It is worth noting that, in framing its argument as a BFOQ defense, the Defendant made its job harder. If the Defendant had simply argued – as its Brief suggests – that the Plaintiff was terminated for lack of “sex appeal,” and not due to her pregnancy itself, the issue of whether pregnant dancers necessarily lack “sex appeal” would be irrelevant. The question would simply be whether the Defendant’s stated reason for the termination was its real reason, and the burden would be on the Plaintiff to demonstrate that it was pretext. 

D’oh!

Folks, while the BFOQ defense is available in cases involve discrimination based on age, sex, religion, and national origin (but never race), it is a hella-narrow exception that should be employed sparingly.

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