Friday, September 3, 2010

Hooters Weight Discrimination - COTW #5

This week's employment law Case of the Week is Smith v. Hooters (Complaint .pdf). Cassandra Smith claims the purveyor of wings and beer placed her on "weight probation." At the time, Ms. Smith avers that she was 5'8 and the grotesque, unsightly weight of 132.5 pounds (it's only out of an abundance of caution that I explicitly label this "sarcasm").

But wait, you may be thinking, "since when is 'weight' a protected characteristic in employment law?" Behold, one of the many dangers of state laws... they prohibit different types of discrimination from state to state (and sometimes even city to city). Michigan's Elliot Larsen Civil Rights Act prohibits discrimination with respect to weight (and height FTR).

My state, Pennsylvania, does not prohibit weight discrimination per se. That's probably true for most other states as well. But, that does not mean employers are in the clear. First, it could be gender discrimination (which Smith alleges due to remarks about a "Hooters Girl"). Holding women to a certain weight standard that doesn't apply to men would be a potential claim. In the right situation, I think a good lawyer could also cobble together an ADA, maybe even GINA, claim. Although, the 132.5 pound waitress probably isn't that case.

The WSJ Law Blog reports that Smith's lawsuit (and a second waitress's) survived a motion to dismiss. Although, it sounds like the only issue was an arbitration agreement, not the weight discrimination. As of this date, there has been no finding of liability or any holding that Hooters actually discriminated on the basis of weight.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.