<i>EEOC v. Ruby Tuesday</i>

In the suit, filed by the commission on Jan. 22 in federal court, Andrew Herrera, a Ruby Tuesday employee in Oregon, claims he was discriminated against because he and other male employees were deprived of the opportunity in the summer of 2013 to apply for temporary server or bartender positions with the company in Park City, UT. The internal job posting for positions in the resort town, which was made available to employees based in Utah, Oregon and seven other states, asked specifically for female applicants only. According to the EEOC's announcement, the company supposedly asked for female applicants because the job also included housing provided by Ruby Tuesday, and the company did not want to house men and women together.

It's easy to guess why Ruby Tuesday may have wanted to avoid putting men and women in the same housing, perhaps because of the increased risk of a sexual harassment suit. Even if this was the case, it didn't matter to Herrera and Joshua Bell, another employee. After failing to resolve the issue with their employer, they are now asking the court to make the restaurant chain stop its allegedly discriminatory practices and compensate them for the opportunities they missed in Utah.

Commentary

J. Hagood Tighe, a partner at Fisher & Phillips who works on employment discrimination cases, said that most cases alleging sex discrimination under Title VII of the Civil Rights Act deal more with the particulars of the job description, rather than where employees are housed. “Usually when you're talking about an issue like this, you're really focusing on the job itself,” he said.

In order to prove that someone's gender is a legally acceptable reason to decline to hire them, companies must prove that for that particular job, gender is a bona-fide occupational qualification (BFOQ). For example, Tighe explained, there have been claims that gender is a BFOQ in prison guard jobs, where guards need to accompany inmates into bathrooms and showers, and sometimes courts have agreed. However, it's usually difficult to prove gender is a BFOQ. “There have been many efforts, but not many successes from an employer's standpoint on BFOQ,” Tighe said.

Although he is not working on this case and has no knowledge of the facts beyond publicly available documents, Tighe suspects that perhaps Ruby Tuesday knows some additional information that could bolster its arguments. Or else why not just settle, considering the sum owed to the plaintiffs would be relatively small for a large company? For now, only Ruby Tuesday knows.

Take-Aways

So how can employers avoid being on the receiving end of the kinds of charges the EEOC cooked up for this restaurant chain? The answer is pretty simple: Don't disallow either gender from applying for a job.

“Employers should really not be making hiring or employment decisions based on gender or any other protected classification,” Tighe noted. “Ruby Tuesday may very well have a good defense and may one day win the case. But even if they do, the general rule for 99.9% of the time is that they should not be making decisions based on any protected classification.”

Rebekah Mintzer writes for Corporate Counsel, an ALM sister publication of this newsletter, in which this article also appeared.

Ruby Tuesday Inc. is a restaurant chain known throughout the U.S. for its burgers and casual family-friendly atmosphere. Unfortunately for the company, the U.S. Equal Employment Opportunity Commission (EEOC) apparently wants to make it known for something less savory: a novel approach to sex discrimination.

EEOC v. Ruby Tuesday isn't the typical case on the discrimination menu. The plaintiffs claiming discrimination based on their gender are men, which is still relatively rare. What's even more unusual is that the charges stem not from a direct employment action per se, but from a decision regarding employee housing.

The Case

In the suit, filed by the commission on Jan. 22 in federal court, Andrew Herrera, a Ruby Tuesday employee in Oregon, claims he was discriminated against because he and other male employees were deprived of the opportunity in the summer of 2013 to apply for temporary server or bartender positions with the company in Park City, UT. The internal job posting for positions in the resort town, which was made available to employees based in Utah, Oregon and seven other states, asked specifically for female applicants only. According to the EEOC's announcement, the company supposedly asked for female applicants because the job also included housing provided by Ruby Tuesday, and the company did not want to house men and women together.

It's easy to guess why Ruby Tuesday may have wanted to avoid putting men and women in the same housing, perhaps because of the increased risk of a sexual harassment suit. Even if this was the case, it didn't matter to Herrera and Joshua Bell, another employee. After failing to resolve the issue with their employer, they are now asking the court to make the restaurant chain stop its allegedly discriminatory practices and compensate them for the opportunities they missed in Utah.

Commentary

J. Hagood Tighe, a partner at Fisher & Phillips who works on employment discrimination cases, said that most cases alleging sex discrimination under Title VII of the Civil Rights Act deal more with the particulars of the job description, rather than where employees are housed. “Usually when you're talking about an issue like this, you're really focusing on the job itself,” he said.

In order to prove that someone's gender is a legally acceptable reason to decline to hire them, companies must prove that for that particular job, gender is a bona-fide occupational qualification (BFOQ). For example, Tighe explained, there have been claims that gender is a BFOQ in prison guard jobs, where guards need to accompany inmates into bathrooms and showers, and sometimes courts have agreed. However, it's usually difficult to prove gender is a BFOQ. “There have been many efforts, but not many successes from an employer's standpoint on BFOQ,” Tighe said.

Although he is not working on this case and has no knowledge of the facts beyond publicly available documents, Tighe suspects that perhaps Ruby Tuesday knows some additional information that could bolster its arguments. Or else why not just settle, considering the sum owed to the plaintiffs would be relatively small for a large company? For now, only Ruby Tuesday knows.

Take-Aways

So how can employers avoid being on the receiving end of the kinds of charges the EEOC cooked up for this restaurant chain? The answer is pretty simple: Don't disallow either gender from applying for a job.

“Employers should really not be making hiring or employment decisions based on gender or any other protected classification,” Tighe noted. “Ruby Tuesday may very well have a good defense and may one day win the case. But even if they do, the general rule for 99.9% of the time is that they should not be making decisions based on any protected classification.”

Rebekah Mintzer writes for Corporate Counsel, an ALM sister publication of this newsletter, in which this article also appeared.