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Vanderbilt Law Review

First Page

1107

Abstract

In 1993 several former waitresses at the restaurant "Hooters" sued the chain for sexual harassment. The lawsuits alleged that Hooters established a work environment in which its customers felt free to make sexual comments and advances to its waitresses.' Examples of the offensive nature of the work environment included the name of the restaurant ("Hooters," a slang term for women's breasts) and the sexually provocative uniforms the waitresses were required to wear. Responses to the lawsuits varied widely. Some individuals took the view that Hooters should be found liable for the sexual harassment of its waitresses by its customers, while others argued that the Hooters waitresses should not be allowed to recover for conduct they should have anticipated at the time they chose to work at Hooters.

The Hooters lawsuits raised the question that is the focus of this Note: should there be an assumption of risk defense to some hostile work environment sexual harassment claims? Although the lawsuits were settled, the issue remains relevant as the potential for hostile work environment sexual harassment claims by employees of Hooters and other sexually charged environments continues to exist.

Part II of this Note provides the legal background for the issue. It provides a brief history of hostile work environment sexual harassment, focusing on cases involving harassment by nonemployees. It also describes the defense of assumption of risk, and distinguishes assumption of risk from the unwelcomeness element in current sexual harassment law. Part III examines the usefulness of an assumption of risk defense in cases involving sexually charged workplaces, describing in detail the allegations of the Hooters lawsuits and applying assumption of risk concepts to the sexual harassment claims in the lawsuits. Part IV attempts to determine when an assumption of risk defense to sexual harassment should be permitted by comparing the Hooters claims to the highly disfavored Rabidue v. Osceola Refining Company. Part V discusses the advantages and disadvantages of the proposed defense, as well as alternatives to the proposed defense, and concludes that assumption of risk concepts are useful in sexual harassment law and should be utilized, even if not by explicitly allowing on assumption of risk defense.

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