Rare Michigan Law May Help Waitress Win Lawsuit

The Grand Rapids Press

By Jeff Engel
May 26, 2010

A former Hooters worker in Roseville stands a chance of winning her weight discrimination lawsuit based on a law written by a retired Grand Rapids legislator -- a law not found in most states.

Cassandra Smith, 20, alleges a Hooters restaurant -- known for its scantily-clad waitresses -- placed her on 30-day "weight probation" earlier this month. She resigned, filing suit Monday in Macomb County Circuit Court.

The suit cites the Michigan Elliott-Larsen Civil Rights Act, which prohibits discrimination by employers based on a number of factors. Height and weight discrimination were added in a 1976 amendment written by then-state Rep. Thomas Mathieu, D-Grand Rapids.

Mathieu recalled his bill in an interview Tuesday, saying if Smith's allegations are true, then Hooters violated her civil rights.

"That's a discriminatory practice in Michigan," Mathieu said. "(Hooters') obligation is to follow the law in the state they're in."

Michigan is one of a few states, perhaps the only one, that outlaws discrimination hinging on weight, said Nate Plantinga, a law partner specializing in labor and employment at Miller Johnson's Grand Rapids office.

Plantinga said Smith's lawsuit might not hold water if it were being tried in a state without that requirement.

Nationally, the most prominent recent trend has been toward laws fighting discrimination over sexual orientation, but similar laws about physical appearance are "gaining traction," Plantinga said.

Mathieu, who represented Grand Rapids for 24 years, originally introduced the height and weight amendment because he was "flabbergasted" by the number of cases of unfairness involving women seeking office jobs who possessed the necessary skills and personality, but were overweight.

"They wanted Raquel Welch at the front desk," Mathieu said, referencing the svelte actress and sex symbol of the '60s and '70s.

The only exceptions to the statute involve denial based on a "bona fide occupational qualification," Mathieu said, citing an obese horse jockey as a possible example.

Smith's lawsuit said the 5-foot-8-inch tall woman weighs 132 pounds -- 13 pounds less than when the Roseville Hooters recruited her in 2008. It said she had received positive performance evaluations, but that on May 14, she was told to lose weight to better fit into an extra-small uniform.

Most employers don't impose physical requirements, and discrimination based on physical appearance -- while "abhorrent" to most people -- is technically legal in most states, Plantinga said. Neither does federal law prohibit such discrimination.

Hooters of America, based in Atlanta, has said it doesn't impose a weight requirement.

Richard Bernstein, a lawyer representing Smith, said Hooters "misclassifies" its workers as performers, creating different titles to get around law requirements.

"Hooters would contend their waitresses are analogous to the Dallas (Cowboys) cheerleaders," Bernstein said. "They're saying that to keep a position, you will have to engage in unhealthy behavior."

Bernstein called this a "benchmark case" that will settle the idea that physical appearance shouldn't be a component of an employee keeping his or her job.

Hooters of America said in a statement that it has not asked any employee in Michigan to lose weight and will fight the claim, calling Smith's lawsuit "baseless and self-serving," according to a Reuters article.

The company said it does sometimes "challenge employees about their image," but "no more than a few dozen times" per year, according to Reuters.