In considering a motion for summary judgment that may have been written just so I could write about it, in Berry v. The Great American Dream, Inc. (No. 13-CV-3297-TWT), the Northern District of Georgia decided – once and for all – that pregnant women can be sexy.
Now, you might be thinking – what circumstances could possibly have caused a court to consider that question and come to that conclusion?
In comes The Great American Dream, Inc. d/b/a PinUps. (Yes, another stripper case.)
Two months after she became pregnant, Pin Ups terminated one of its dancers who left work early one day and failed to pay the required “leave early fee.” (Notably, she was specifically told that if she paid the fee, she’d get her job back.) The dancer sued PinUps, alleging that she was told she was being fired because she was pregnant. (Ah, the dreaded material question of fact.)
I give the employer’s attorneys credit for thinking outside the box to get around this summary judgment-stopping situation. It seems (in my defense-oriented mind, anyway) that the employer had a legitimate non-discriminatory reason for terminating the plaintiff. If the plaintiff’s statement regarding the reason for her termination is not credible, the employer will win the day in the end. But that would require a lengthy and expensive trial, and why not try to avoid that, if at all possible?
So, the employer argued in its motion – without conceding the absence of a legitimate, non-discriminatory reason for the termination – that “sex appeal” is a bona fide occupational qualification (we like to call that BFOQ, for short) and that pregnant women, by definition, lack that qualification.
Now, I have never earned a living as a stripper, cannot dance, and have never been with child, so have no personal experience with these issues. But I do know a few people who might balk at the suggestion that pregnant women cannot be sexy.
As it turns out, so did the court in this case.
The court found that the employer had failed to present any evidence that a woman’s “status” as “pregnant” has anything to do with the job requirement of “sex appeal.”
In fact, the court noted that two of the employer’s managers testified that many of Pin Ups’ “clients often prefer (and request) dancers with ‘thicker’ bodies.” (Apparently, those patrons are “All About That Bass,” too.) There also was testimony from one of those same managers that a dancer is generally not terminated when she becomes pregnant; rather, she is asked to dance on the floor instead of on stage. (Not sure if this is a safety or eye-level issue…) The manager further testified that one dancer continued working until she was eight months pregnant. (You go, girl!) That same manager (who apparently had a lot to say) also testified that “each individual’s body is unique and has a different appearance under different circumstances, such that some people may be able to meet Pin Ups’ standards of sex appeal at a given time (e.g., during pregnancy) while others may not be able to do so in the same circumstances.” (Translation – and do not tell my pregnant friends this: some pull off “cute pregnant lady” better than others.)
Based largely on that testimony, the court held that “non-pregnancy status” is not, by its definition, a BFOQ. (So much for that motion. But, nice try!)
The court dropped a footnote suggesting that the better argument for the employer would have been to go with the non-discriminatory reason/pretext angle. In my opinion, that wasn’t likely to have been any more successful on a motion for summary judgment; trial would probably be a different story. So, why not take a shot at BFOQ at the summary judgment stage?
I give the employer an [LMF]A[O] for effort.
Carmon Harvey (Bio | LinkedIn | Twitter) is a shareholder resident in the Newark and Philadelphia offices. Carmon has run more than 25 marathons, which allows her to indulge in her second and third most important hobbies: eating lots of delicious food and drinking great craft beers.