Arbitration at Core of Issue in Hooters Case

Roseville - Eastpointe Eastsider

By Robin Ruehlen, C & G Staff Writer
July 21, 2010

ROSEVILLE - The lengthy employment agreement Hooters Girls must sign includes certifying they can make good margaritas, understanding how to wear the uniform and promising never to wear the official Hooters Girl uniform outside of work on, for example, Halloween. And, in the event of a dispute, it includes waiving their rights to a trial by jury.

The latter is what both sides in a weight discrimination battle are now disputing in Macomb County Circuit Court, in the case of former Hooters Girls Cassandra Smith and Leanne Convery versus Hooters of America Inc.

"The legal complications are really quite dramatic," said Richard Bernstein, attorney for Smith and Convery.

"Employers do this to people - make them sign a document that they must submit to binding arbitration rather than have a jury trial. And in this case, Hooters states in its own documents that perhaps employees should have the agreement reviewed by an attorney, but that they aren't allowed to take the document home with them." Smith, 20, filed a civil lawsuit against the company in Macomb County Circuit Court on May 24 following her May 14 employment evaluation. The lawsuit claims she was "admonished, disciplined and counseled" by supervisors about the fit of her uniform, and told to join a gym in order to lose weight and improve her looks within 30 days, or face termination - what Bernstein says is a clear violation of Michigan's Elliott-Larsen Civil Rights Act.

The 5-foot-8-inch-tall, 132.5-pound college student wore an extra-small size uniform, and claims she was actually 145 pounds at the time she was hired.

Roseville resident Leanne Convery filed a similar lawsuit on June 2, 2010, claiming she was hired at the Roseville location in March of 2004, and later terminated in August of 2009 for violating "weight probation policies." Convery, who is 4 feet 11 inches tall and weighs 115 pounds, claims she was told on July 6, 2009, that she had 30 days to make her extra-small tank top and shorts "fit more properly" or lose her job. She then launched into a crash diet, losing 15 pounds in 30 days, but was fired anyway on Aug. 10 for showing "no improvement." The suit also alleges Convery was encouraged by fellow Hooters employees to take weight-suppression drugs.

Both sides met before Judge Peter Maceroni for a summary disposition on July 12 in regards to the arbitration agreement.

Bernstein said although such agreements are common and legally binding, this particular one presents a problem for Hooters.

"In order to force the case into arbitration, it is absolutely essential that the document is written to conform to the state statute regarding arbitration proceedings," he said.

"To waive your right to a jury trial is one of the most serious things a person can do. And if you, as an employer, are going to make someone sign that document, it must be comply with those statutes - and the Hooters document clearly does not." Hooters of America Inc. did not respond to requests for comment.

Unlike a jury trial held in open court, arbitration is held in private and is handled by a panel of arbiters whose members are chosen by both sides. The panel hears arguments, and then issues its findings in the case.

Hooters is arguing for statutory arbitration, while the plaintiffs are arguing for common law arbitration.

In common law arbitration, either side has the right to waive the arbitration process up until the time the arbiters reach a decision.

"In that case, our client or Hooters could exercise their right to be heard by a jury instead," Bernstein said.

The company had 10 days to file a response brief to the arguments, after which the plaintiffs will also be given 10 days to file a second response.

Bernstein said Maceroni indicated he would then issue a written opinion on the matter.