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.