MARYLOU’S COFFEE, a chain in New England, is renowned less for its coffee than for its staff. In tight pink T-shirts and short shorts, they tend to be young, pretty and female. But is that illegal? In May the press reported that the Equal Employment Opportunity Commission was investigating Marylou’s for hiring discrimination. (The EEOC cannot confirm any investigation at this point.) Worse, the papers said the investigation comes without anyone having complained about being turned down for a job. Op-ed writers pounced. A writer at the Boston Herald proclaimed: “Yes, Marylou’s ‘discriminates’. Every employer ‘discriminates’. If they didn’t, I’d be working as a Chippendales dancer.”

The federal government has no law forbidding “attractiveness discrimination”. Only a few places do: Washington, DC, and Santa Cruz and San Francisco in California. Instead, lawsuits proceed on the fact that it is usually illegal to discriminate on the basis of sex, race, religion, disability or national origin. Customer preference for a certain “look” cannot be the only basis for such discrimination, or else stores in racist areas could refuse to hire black employees. In 2004 the EEOC sued Abercrombie & Fitch, a clothing retailer. The company said that its staff’s looks were part of its marketing approach. But in the words of Justine Lisser, an EEOC lawyer, “That look was that you had to be white, young and physically fit. If you were young, physically fit and African-American you’d be in the stockroom.” Abercrombie & Fitch paid $50m to settle the case.

As for hiring a single sex, the key is whether that sex is a “bona fide occupational qualification”. Southwest Airlines used to flaunt its hostesses in its marketing (“Spreading love all over Texas”). But in 1981 a court found that, unlike the Playboy Club, Southwest’s business was not “forthrightly to titillate and entice male customers”, but to ferry them from Dallas to Houston. Southwest was ordered to hire men as well.

Chippendales can go on refusing to hire pasty journalists. But one day Marylou’s may have to choose between claiming its business is “forthrightly to titillate male customers”, or change its hiring practices. Perhaps a few men, or ladies of a certain age?