Jennifer Paviglianiti, 29, of Centereach, N.Y., has filed an interesting discrimination lawsuit against her former boss, John Doxey and the Cafe Royale Gentleman’s Club (a topless bar). When she became pregnant, she was allegedly fired because her new image was not what the club members expected.
Paviglianiti filed charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging “cause of discrimination” is based on “sex, retaliation, perceived disability, and pregnancy.” She quotes Doxey as telling her that customers are “not coming in to see sexy bartenders that are pregnant and bulging out.”
What makes this case particularly interesting is that Paviglianiti has produced a tape showing her arguing with Doxey. On the tape, Doxey reportedly states “A pregnant woman behind the bar, in a topless bar, I’m beginning to think that it’s hurting the registers and you’re incapable of fulfilling all of your job duties. . . . I’m not saying that you’re not trying, OK, but number one, I don’t want nothing to happen to you…they’re not coming in to see sexy bartenders that are pregnant that are bulging out, I’m sorry… Each week you’re getting bigger and bigger, and uh, more unsexy, unsexy, OK….I’m not saying that you’re not ringing the register, I just said there’s all different things and aspects, customers don’t wanna come in and see a pregnant woman behind the bar. Why can’t you get that through your head, you’re not getting it.” He better hope that this is not a jury trial with any women on the panel.
This could create a fascinating debate over the meaning of a bona fide occupational qualification (BFOQ) under the Civil Rights Act which states:
Notwithstanding any other provision of this subchapter … it shall not be an unlawful employment practice for an employer to hire and employ employees … on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
We have seen such cases arises in businesses that hire based on beauty, here and here.
United States Code Title 29 (Labor), Chapter 14 (age discrimination in employment), section 623 (prohibition of age discrimination) establishes that “It shall not be unlawful for an employer, employment agency, or labor organization (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located.”[
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