The case of a former Hooters waitress who alleges she was forced to quit her job because she wouldn't go on “weight probation” might fit an exception to a Michigan law which prohibits discrimination based on weight.

Cassandra Smith, 20, filed her lawsuit last week — less than two weeks after Hooters management allegedly told her during a performance evaluation that she had to lose weight “as a condition of retaining her employment” at the company's restaurant in Roseville, Mich. The 5-foot-8 woman weighs 132 pounds.

“Plaintiff was disciplined and put on notice that she would lose her job because she was not the correct weight as defined by Defendants' requirements for being a 'Hooters Girl,'” the complaint says.

The Michigan Elliott-Larsen Civil Rights Act, as amended in 1976, makes it illegal for an employer to discriminate against an individual because of height or weight. Courts have applied the law to cases involving a surgeon at a hospital, a nurse at a retirement home, and a store manager for a paycheck lending business.

“[I]f a party directly proves that the party was discharged from employment with the party's weight being a determinative factor in the discharge, then the party has established a claim of weight discrimination,” the Michigan Court of Appeals said in Lamoria v. Health Care & Retirement Corp., 584 NW 2d 589 (1998).

But an employer is exempt from the law if its discriminatory policy “is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the business or enterprise.” Playboy, for one, successfully used the BFOQ defense against discrimination claims involving its Bunny Girls.

“Although it is this writer's opinion that a business such as [Playboy's] which is based upon the commercial exploitation of sex appeal and deliberately seeks [ ] to titillate and entice has little to recommend its establishment or perpetuation, its existence is not in violation of the Human Rights Law,” the New York State Human Rights Appeals Board said in one Bunny Girl case.

According to Healthchecksystems.com, a 5-foot 8-inch woman should weigh between 126 and 167 pounds. When Smith began working for Hooters in 2008, she says in her suit, she “weighed close to 145 lbs.”

But during the May 14 evaluation, she was allegedly “advised to join a gym in order to lose weight and improve her looks so she would fit better into the extra small-size uniform she was required to wear.” Supervisors put her on 30 days of “weight probation,” telling her “they would understand if she could not succeed and, therefore, wanted to quit her job.”

Smith resigned rather than agree to weight probation and is now suing Hooters for at least $25,000 in damages. “Defendants' policy and practice of requiring its 'Hooters Girls' to maintain a particular weight constitutes a violation of the Elliott-Larsen CRA,” the suit says.

The 1976 amendment to the law reflected concern over women with the necessary skills for office jobs suffering discrimination because they were overweight. “They wanted Raquel Welch at the front desk,” then-state Rep. Thomas Mathieu, who wrote the amendment, told The Grand Rapids Press.

But Hooters has already indicated it will argue that an appropriate weight is a “bona fide occupational qualification” for a waitress. “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair,” the company said in a statement. “It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”

In a somewhat similar case, a Texas man sued Hooters last year for denying him a position as a server, arguing that because a male or female could perform that job equally well, the company was not entitled to the BFOQ defense. But the case settled before a judge could address his argument.

Smith apparently performed her job well even when she was 13 pounds heavier. She also makes the point that her supervisors “provided no explanation as to what constitutes correct or proper fit of the Hooters' uniform, nor what degree of thinness would satisfy them relative to the Plaintiff.”

The essence of the Hooters business enterprise, though, is to entice male customers with shapely waitresses and the BFOQ defense could be successful if Hooters shows that an out-of-shape waitress is inconsistent with that image.

By Matthew Heller
5/30/10