I recently had a club manager mention a planned requirement for the dancers that work there to wear a certain outfit that would intentionally only be available in certain sizes.
It awakened an idea I had years ago for a an approach to staffing and I've wondered what opinions are available on the legality of a couple of potential "policies". I am considering returning to the night club industry within the next year or so and have been looking at different concepts.
One part of a club experience envisioned would include an all female staff (visible) where the staff would fit in the category of "spinners".
a) Can you exclude certain applicants based on physical size if it is a part of the marketing approach of the club?
b) Can a uniform for employees to wear that is only available in certain sizes. i.e 0-4 be required?
c) Could a requirement that any ink they have must be completely covered by the uniform with no allowed accessories work?
d) Would a requirement that limits jewelery worn to a single bracelet, watch and basic stud and dangling earrings (limited in size) limited to no more than two per ear and limited in size to avoid "guaged" ears be workable?
Any answers to these questions only need to be relevant to Texas and feel free to PM or email me.
- Whispers
- 01-02-2015, 12:30 PM
- ShysterJon
- 01-03-2015, 08:25 AM
Two principles are involved here. First, an employer is allowed to impose rules in the workplace, as long as the rules don't run afoul of federal, state, or local laws regulating workplaces. Texas state courts have held that employers' workplace rules don't even have to be reasonable.
Second, federal, state, and local laws bar discrimination based on an immutable trait, such as gender, age, disability, national origin, religion, and race. Increasingly, laws are coming into effect barring discrimination based on sexual orientation. In addition, there are laws barring discrimination for doing jury duty, filing a claim for workers compensation, refusing to perform an illegal act, or whistleblowing, among others. A worker may also have rights based on an employment contract or because they're in a union with a collective bargaining agreement. With the exception of one state (see below), I know of no federal, state, or local law barring discrimination based on weight.
Female employees of breastaurants and strip clubs have filed lawsuits arguing weight and uniform requirements were discriminatory based on gender and weight. Probably the most well-known of these lawsuits was filed in May 2010 in a state court in Michigan after after an employee was given a job performance review and was told that her shirt and short size could use some improvement. To my knowledge, Michigan is the only state that bans weight discrimination in hiring. The lawsuit was settled out of court. I know of no lawsuit in which the plaintiff successfully argued a weight discrimination claim to a verdict.
With the foregoing in mind, the following are my answers to your questions:
a) Can you exclude certain applicants based on physical size if it is a part of the marketing approach of the club?
Yes.
b) Can a uniform for employees to wear that is only available in certain sizes. i.e 0-4 be required?
Yes.
c) Could a requirement that any ink they have must be completely covered by the uniform with no allowed accessories work?
Could such a workplace rule "work"? Sure, such a rule could be effective within the realm of possibilities. But I think you mean would such a rule be legal. My answer is "yes." There are no laws barring discrimination against people with tattoos. By "accessories" you might mean piercings. There are no laws barring discrimination against people with piercings.
d) Would a requirement that limits jewelery worn to a single bracelet, watch and basic stud and dangling earrings (limited in size) limited to no more than two per ear and limited in size to avoid "guaged" ears be workable?
See my answer to question 'c.'
Finally, some of the confusion regarding discrimination in the workplace might stem from a layperson's misunderstanding of what is 'discrimination' under the law. I may prefer slender women as companions because I have 'discriminating' tastes. I may date only Hispanic girls because I bear a discriminatory animus against members of other races. But my conduct obviously wouldn't constitute 'workplace discrimination.' Laws regarding workplace discrimination are very specific regarding which immutable traits are covered, and the basis of such laws is that, as a society, we don't allow discrimination based on an immutable trait in PUBLIC (as opposed to private) dealings.
Second, federal, state, and local laws bar discrimination based on an immutable trait, such as gender, age, disability, national origin, religion, and race. Increasingly, laws are coming into effect barring discrimination based on sexual orientation. In addition, there are laws barring discrimination for doing jury duty, filing a claim for workers compensation, refusing to perform an illegal act, or whistleblowing, among others. A worker may also have rights based on an employment contract or because they're in a union with a collective bargaining agreement. With the exception of one state (see below), I know of no federal, state, or local law barring discrimination based on weight.
Female employees of breastaurants and strip clubs have filed lawsuits arguing weight and uniform requirements were discriminatory based on gender and weight. Probably the most well-known of these lawsuits was filed in May 2010 in a state court in Michigan after after an employee was given a job performance review and was told that her shirt and short size could use some improvement. To my knowledge, Michigan is the only state that bans weight discrimination in hiring. The lawsuit was settled out of court. I know of no lawsuit in which the plaintiff successfully argued a weight discrimination claim to a verdict.
With the foregoing in mind, the following are my answers to your questions:
a) Can you exclude certain applicants based on physical size if it is a part of the marketing approach of the club?
Yes.
b) Can a uniform for employees to wear that is only available in certain sizes. i.e 0-4 be required?
Yes.
c) Could a requirement that any ink they have must be completely covered by the uniform with no allowed accessories work?
Could such a workplace rule "work"? Sure, such a rule could be effective within the realm of possibilities. But I think you mean would such a rule be legal. My answer is "yes." There are no laws barring discrimination against people with tattoos. By "accessories" you might mean piercings. There are no laws barring discrimination against people with piercings.
d) Would a requirement that limits jewelery worn to a single bracelet, watch and basic stud and dangling earrings (limited in size) limited to no more than two per ear and limited in size to avoid "guaged" ears be workable?
See my answer to question 'c.'
Finally, some of the confusion regarding discrimination in the workplace might stem from a layperson's misunderstanding of what is 'discrimination' under the law. I may prefer slender women as companions because I have 'discriminating' tastes. I may date only Hispanic girls because I bear a discriminatory animus against members of other races. But my conduct obviously wouldn't constitute 'workplace discrimination.' Laws regarding workplace discrimination are very specific regarding which immutable traits are covered, and the basis of such laws is that, as a society, we don't allow discrimination based on an immutable trait in PUBLIC (as opposed to private) dealings.
- Whispers
- 01-03-2015, 10:13 PM
Thank-you for the response.