Hooters Case to Continue

Judge says ‘Hooters girls’ did not waive legal rights in signing

Macomb Daily

By Jameson Cook, Macomb Daily Staff Writer
August 24, 2010

A weight- and gender-discrimination lawsuit by two former Hooters girls will continue toward a potential trial after a judge denied its dismissal on the claim the issues should go to arbitration.

Judge Peter J. Maceroni of Macomb County Circuit Court on Monday denied a summary disposition sought by Hooters of Roseville and Hooters of America, which claimed the two young women at their hirings signed away their lawsuit rights.

Maceroni said there are “issues of fact” as to whether Cassandra “Cassie” Smith of Roseville and Leanne Convery of Harrison Township properly agreed to arbitration. The women signed were not given a chance to review documents with an attorney.

“The arbitration procedures must be fair so that the employee may effectively vindicate his statutory rights, which includes that the employee receive adequate notice and knowingly waive the right to litigate claims in court,” Maceroni says, quoting a prior case.

Smith and Convery “were never afforded an opportunity to take the agreement with them to consult with counsel,” he says.

Smith, 20, and Convery, 23, sued Hooters earlier this year, claiming that while working at the restaurant-bar on Gratiot Avenue they were fired or forced to quit for being too fat. They also allege intentional infliction of emotional distress. Michigan is one of a few states that bars bias based on weight.

Their attorney, Mark Bernstein, applauded the ruling because there’s a good chance it will go to trial.

“This means this case very likely will go to a Macomb County jury, where it belongs,” Bernstein said.

Hooters attorney Dan Cohen said Hooters is considering its “procedural options,” implying an appeal. Cohen said new hires are clearly informed about arbitration.

“No new hire can claim that they were blindsided by the presentation of an arbitration agreement after they were hired, and Hooters ultimately expects to prevail on this issue,” he said in an e-mail.

At the top of the application is the following verbiage, he said:

“Your application will be considered only after you have agreed to arbitration.

You may obtain a copy of this agreement and the arbitration rules upon request.

You may take as much time as you like to review this agreement.

You are encouraged to seek legal advice before signing the agreement to arbitrate.”

Bernstein countered: “They weren’t given a real opportunity to have the arbitration clause thoughtfully evaluated by an attorney or by the plaintiffs, without or without an attorney.”

Attorney Rob Huth, also representing Hooters, noted, “The opinion and order does not go to the merits of the case; it just decided where it will be heard.”

There have been no settlement discussions but Bernstein speculated the ruling may spur negotiations. “I think they were planning on winning this decision,” he said. “This decision may open the door to discussions.”

If the case goes to trial, it likely would take place next year following months of evidence gathering.

Smith, who says at the time she weighed 132 pounds on a frame of 5 feet 8 inches, said in May she was told she was being put on weight probation. She made comments to the media, left the 2-year-old job and filed the lawsuit.

Convery says she weighed 115 pounds on a frame of 4 feet 11 inches and was told in July 2009 to lose weight. She says she lost 15 pounds but was told a month later she made no improvement during her probation. She sued in June.