It is not unlawful to discriminate, as the law says, "in those instances where religion, sex or national origin is a bona fide occupational qualification."
One supposes, for example, that it would be hard to be a rabbi if one were not of the Jewish faith. But figuring exactly which jobs require being female as a bona fide occupational qualification is a bit more difficult.
Women sportswriters, after all, have bullied their way into men's locker rooms despite any claims athletes have to privacy. (We have personally seen female sportswriters in the act of interviewing athletes with exposed private parts.) No one would question the credentials of a male gynecologist, who has far more access to women's privacy than any man handing a gown through a dressing-room door.
In some rolling-eyes media accounts, Dick Kovacic's case has been likened to the EEOC decision that the Hooters chain had no legal right to ban male employees from its restaurants.
"They both have to do with what is a bona fide occupation qualification," says Ellen Vargyas, legal counsel for EEOC in Washington, D.C. "It has been reported that Lillie Rubin refuses to hire men for a wide variety of positions and Hooters refuses to hire men for a wide variety of positions as well. The questions both go to Title VII. Sex discrimination is prohibited and the only defense of sex discrimination is where sex is a bona fide occupational qualification."
But the Hooters and Lillie Rubin cases differ greatly in the professional qualifications the jobs require. The Hooters case seems frivolous, in part because it forces the restaurant chain to admit that the only reason it needs to hire women is for their bust lines. And it's a ridiculous premise that a man would even want equal status in a bar whose whole reason for existing is so that other men can stare at busty waitresses in tight shirts. But there is no justifiable legal reason men should be excluded from such a job.
Dick Kovacic, on the other hand, just wanted to continue working in his chosen field, a field that required a certain amount of professional expertise. To focus on dressing rooms is to reduce his experience to that of a washroom attendant.
Nevertheless, EEOC at first planned to rule against Dick.
"They just listened to Lillie Rubin and said, 'No, it's a privacy thing; men just can't do this,'" he says indignantly. "I went back and said, 'Excuse me, I am doing this everyday.' They went, 'Oh!' They had never even checked into it. They checked into it and said, 'You're right! They are doing something wrong.'"
Meanwhile, Kovacic has not yet decided if he wants to sue at all, but he is looking for lawyers willing to take the case on contingency. But with Lillie Rubin filing for bankruptcy, he is not optimistic.
He doesn't expect to reap great financial rewards from litigation.
"I wouldn't care, if the policy changed," he says.
When New Times suggested that he be photographed in front of the Biltmore Lillie Rubin store, he refused.
"That would be a cheap shot," he says.
At Gustavo in the Esplanade, salesperson Marcie Pound is expounding on the reputation of her competitor, Dick Kovacic.
"People don't really know him by his last name," she says, "but they know who Dick is. He's a legend in this town."
And then almost as if on cue, a well-coiffed woman in the process of plunking down a sum equal to the Gross National Product of Burma for a few dainty little things, turns and says, "Dick who? Oh, you mean Dick.
"I just met him about three weeks ago. My close friend, who's also his close friend, suggested I meet him. I wasn't buying that day, but I went up just to introduce myself for the future."
Why any business would turn away a salesperson with that kind of drawing power is a mystery.