Hooters Case Sparks Debate About Weight Discrimination

Practice is common, some lawyers say

Detroit Free Press

By Steve Neavling, Free Press Staff Writer
June 6, 2010

The recent lawsuits by two waitresses who claim they were discriminated against because of their weight have opened the debate among business owners and legal experts about what constitutes discrimination.

Some employment and legal experts say the Hooters lawsuit is just one example of how employers often discriminate based on appearance. Others say one's appearance, including weight, can be a legitimate factor in hiring decisions.

Although Michigan has a rare law that bans discrimination based on weight and height, employment still is a lot easier to find if you're thin, lawyers and advocacy groups say.

"This is really a common business practice," said attorney Richard Bernstein, who represents Cassie Smith and Leanne Convery in lawsuits that claim they were fired as waitresses because they weren't trim enough. "This really is the cornerstone of civil rights: You can't discriminate based on appearance."

Michigan is the only state with a weight discrimination ban, which opened the door for the two Hooters lawsuits. Inspired by the state ban, six cities – San Francisco; Birmingham, N.Y.; Santa Cruz, Calif.; Madison, Wis.; Washington, D.C., and Urbana, Ill. -- have adopted their own weight discrimination laws.

About 64% of Michigan residents are overweight, the sixth highest rate in the country, according to the Centers for Disease Control and Prevention.

"Discrimination based on appearance is something we're supposed to get beyond these days," said attorney Gary Benjamin, who specializes in employment discrimination cases.

However, there are exceptions, attorneys agree. Entertainers, actors and models, for example, are hired to accommodate a specific appearance.

"Our business provides for talent that must meet a certain height or weight requirement," said Tony DiMambro, a talent agent with I Group Model and Talent Management in Southfield.

And Hooters officials say appearance matters in their industry as well. The company claims the law doesn't apply because their waitresses can be considered entertainers, and the company's image is reliant on fit, attractive waitresses.

"I guess what the basis of the lawsuit is, what a Hooters girl looks like matters everywhere in the United States except Michigan," said Mike NcNeil, vice president of marketing for Hooters of America. "I'm here to tell you it matters what they look like in Michigan as well."

The state's weight discrimination ban, included in the Elliott-Larsen Civil Rights Act that bars other types of discrimination such as race, age and gender, was signed in 1976 after female auto employees and prospective police officers and firefighters complained that they were denied jobs because of unfair height standards that favored men.

Attorneys say few weight discrimination cases have landed in courts, making it difficult to determine whether some businesses don't have to comply with the law.

"While plaintiffs have been alleging discrimination on the basis of weight for some time, there is very little case law interpreting that specific provision," said J.J. Prescott, a law professor at the University of Michigan.

In fact, attorneys say, an average of one weight discrimination lawsuit a year is filed in Michigan.

In 2005, a jury awarded $284,000 to a 360-pound Bad Axe man who was fired from his job at Continental Rental. He claimed he was fired because of his weight. His attorney said his weight stemmed from a medical condition.