Hooters and Weight Discrimination

A Hooters waitress in Michigan claims that she’s been put on probation and told to lose weight if she wants to keep her job. The server, standing five feet, eight inches, and weighing 132 pounds, says she’s devastated and looking for a lawyer. Hooters says it imposes no weight restriction on its employees. “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair. It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”

According to the waitress, she just received a glowing two year performance review. She was rated as excellent in dealing with customer complaints and customer satisfaction. Apparently, however, she’s a bit too heavy for the Hooters outfit and the Hooters image. (Both the Cowboy Cheerleaders and the Rockettes are held to an image standard, but both organizations say they have no weight requirements. The Cowboys organization does say that its cheerleading outfit will accommodate only a slim body. The Rockettes have a height requirement which would seem to indirectly impact weight for participants whose workout requirements are legendarily demanding.)

As an employee who regularly wears a tight tank top and tighter short shorts, the Hooters girl in question is thinking about a weight discrimination lawsuit. Michigan’s general anti-discrimination law covers weight, as well as the categories usually covered: race, gender, national origin, religion, etc. (It also covers height.) Therefore, a weight discrimination lawsuit is possible. While she’s at it, she should perhaps consider a sex discrimination claim. Surely, there are some pudgy male employees who aren’t on probation.

Hooters has been sued several times for sex discrimination (usually in connection with its failure to hire male servers) during the past 20 years or so. It has usually invoked the bona-fide occupational qualification (BFOQ) defense, which applies when the “essence of the business operation would be undermined if the business eliminated its discriminatory policy.” It has almost always settled these suits without requiring a change in its hiring policies, although when the EEOC sued Hooters, the company agreed to create some gender-neutral positions for Hooters Persons who would assist Hooters Girls with their duties. (The Wall Street Journal provides partial background, and an Internet search will yield all kinds of information.)

The problem with Hooters’ use of the BFOQ defense is that the company isn’t in the entertainment business, using sex to entice customer patronage. It holds itself out as a family restaurant, though one assumes that males largely populate the restaurant’s patron base. But that could be because of the well-known male preference for wings.

In any event, whether Hooters can successfully use the BFOQ defense has never been resolved by a court. It seems to me that, despite its family restaurant propaganda, the company uses sex as an integral part of its strategy to attract a certain kind of customer. Without the Hooters Girls, Hooters the restaurant just might not be long for this world.

Weight discrimination is a relatively nascent theory. Though there is some support for a discrimination claim under the Americans with Disabilities Act for a morbidly obese employee, the Hooters girl in this case would hardly qualify. So, if she files a weight discrimination lawsuit, it will stand or fall under Michigan state law. And I just don’t know what will happen. I mean, should the Rockettes have to hire an overweight dancer? Maybe so. Maybe such a requirement is fair — at least, in Michigan.

1. 

   Fred Goodwin says:

   May 21, 2010 at 3:58 pm

   The day I am forced to order wings from some “pudgy male employee” in order to satify some stupid PC-notion of fairness and non-discrimination, is the day I stop going to Hooters.