Weight Discrimination Case Involving Hooters' Waitresses Allowed

October 29, 2010 (Press-News.org) A Michigan judge is allowing two former Hooters waitresses to continue their weight discrimination cases against the restaurant chain. The women allege Hooters fired them for not being thin enough.

Michigan's Elliot-Larsen Civil Rights Act prohibits discrimination based on weight or height. Section 37.2202(1)(a) states that "(an) employer shall not ... (f)ail or refuse to hire, or recruit, or discharge or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status."

Michigan is the only state in the United States prohibiting weight discrimination, although some cities have ordinances with similar provisions. While weight discrimination is forbidden under the Act, there is very little case law interpreting this form of discrimination. But as in all cases involving discrimination, a plaintiff alleging unlawful discrimination initially has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. A plaintiff can meet this burden by presenting direct evidence of intentional discrimination, or by providing circumstantial evidence of disparate treatment on a discriminatory basis.

To determine whether a plaintiff has a valid claim for illegal disparate treatment on the basis of weight, Michigan courts apply the burden-shifting evidentiary framework originally articulated in the 1973 United States Supreme Court decision McDonnell Douglas Corporation v. Green, 411 U.S. 792. Under this framework, the plaintiff must show that she was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position from which she was rejected or terminated, and (4) either replaced by a person from outside the protected class, or treated differently than a similarly situated employee from outside the protected class.

If the plaintiff establishes a viable case, then there is a rebuttable presumption of discrimination and the burden shifts to the employer to present admissible evidence in support of a "legitimate non-discriminatory reason" for its decision. The plaintiff can then show by a preponderance of the evidence that the reason is in fact a pretext masking unlawful discrimination.

Section 37.2208 provides an exception that the employer may assert as a defense. The employer may show that weight is a bona fide occupational qualification, reasonably necessary to the normal operation of the particular business. This exception allows an employer to show that "business necessity" justified its discriminatory employment practice.

The question here will be whether Hooters can successfully claim that an appearance standard falls under the exception used for entertainers, models and actors. Hooters' defense is not simple, as one of the waitresses who is 5'8'' tall indicated in her complaint that at the time she was recruited to work at Hooters she weighed close to 145 lbs; about two years later when Hooters put her on "weight probation," she weighed 132.5 lbs. A question may be asked how a waitress no longer qualifies for her position due to her weight when she weighs less now than when the employer first hired her.

If you feel you have suffered discrimination based on any of the factors prohibited under the Elliot-Larsen Civil Rights Act, speak with an experienced employment law attorney who can advise you of your legal options.

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