Donald Trump and the Hooters Waitress: Discrimination or Retaliation?

Employee Gender and Weight Discrimination Defined in Class Action Courts

Gavel on wooden desk
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After Donald Trump came under scrutiny for gender discrimination with a lawsuit filed against his campaign by a fired female staff member, a former female employee in Trump's real estate business reportedly claimed that Trump kept a "fat photo" of her in his drawer, which he pulled out whenever she did something to displease him.  This brings up memories of the weight discrimination lawsuit filed against Hooters by one of its female employees, which brought the issue of retail workplace obesity into the spotlight in a big way...

(pun intended).

In the Donald Trump case, as well as any gender or weight discrimination claim, the blurred line that begs to be more clearly defined is the one that separates employee discrimination and terminated employee retaliation.

Hooters

When a Hooters employee filed a "weight discrimination" suit against the restaurant chain that has built its brand image around its scantily clad waitresses, the issue of workplace obesity was sure to come into the spotlight.  New questions about diversity, hiring, harassment were raised, and no matter what the court's decision would be about the Hooters server who was deemed to be too big for her too-small Hooters uniform, employment laws surrounding obesity were sure to be redefined. 

It's easy to understand why issues about weight and obesity discrimination are being raised more frequently these days. According to the American Obesity Association, 127 million adults in the U.S. are overweight, 60 million are clinically obese, and 9 million are severely obese.

As with any clearly defined group, it is inevitable that some overweight and obese people will identify themselves as victims of discrimination solely because they are a member the group. It is also inevitable that others will advocate on behalf of the overweight and obese people to ensure that discrimination against them is officially defined as unacceptable.

Weight and obesity discrimination surfaced in the U.S. retail industry when the former Hooters Restaurant waitress in Michigan filed a lawsuit alleging that she was the victim of weight discrimination when she told by her boss to get lighter or get lost. After receiving a free gym membership and a probation form to sign, the employee decided that the only thing she wanted to lose was her job and the only thing she wanted to find was a lawyer.

Hiring and employment practices in the Hooters organization are always complicated, but in this case, the questions that are being raised about weight, obesity, diversity, harassment, hiring, and employment laws are not unique to the Hooters chain, which gains much of its unique selling proposition from scantily clad and physically attractive women. Beyond this Hooters case, weight and obesity are becoming contentious issues in many ways for retail organizations.

Abercrombie & Fitch

Weight and obesity discrimination is not a new issue, and Hooters is not the only major U.S. retail chain to confront the issue in recent retailing history.  Whole Foods and Abercrombie & Fitch are just a couple of the largest U.S. retail chains that have confronted the issues of weight and obesity discrimination.

 

Most recently, 62,000 Abercrombie & Fitch employees were certified by a California court in a class action lawsuit in July 2015 focused on the "look policy" that is mandated for all employees by the teen fashion retailer.  Although the Abercrombie & Fitch "look" is not specifically focused on weight, the lawsuit is focused on the fact that employees were forced to purchase and wear clothes sold in Abercrombie & Fitch stores, which did not include plus sizes until 2013.  

It was in 2013 that the now ousted CEO, Mike Jeffries, came under fire after making public remarks about his personal disdain for plus-sized customers.  In response to the maelstrom of public protests about Jeffries' customer weight discrimination, Abercrombie & Fitch now carries plus sizes, albeit in just a token number of sizes, styles, and colors which are modeled by non-plus sized people on the abercrombie.com website.

 

Up until 2013 plus sized employees couldn't have kept a job at Abercrombie & Fitch because they would have had no to way to make the mandatory clothing purchases in a size that fit.  It's likely that this aspect of the Abercrombie "look policy" will come up sometime in the course of this newest class action suit, one in a long line of previous employee class action lawsuits that Abercrombie & Fitch has defended itself against and lost.

Whole Foods

In 2010 Whole Foods (WFMI) was widely criticized for initiating an employee health incentive program which rewarded employees with a healthy body mass index (BMI) by giving them an increase in their employee discount for in-store purchases. Instead of being viewed as an innovative workplace health benefit, critics argued that it was blatant discrimination against overweight employees, as well as an invasion of their medical privacy, even though participation in the program was voluntary.

The Whole Foods program raised questions about whether the company also had discriminatory hiring practices which favored fit and healthy employees. Does a store that caters to a health-conscious clientele have the right to choose employees that match the characteristics of its core customers? Does Abercrombie and Fitch have the right to just hire youth and beauty for its sales floor? Does Hooters have the right to only stock small-sized uniforms and use the appearance of its waitresses to give its otherwise indistinct dining experience some competitive advantage?

What the BFOQ?

In the case of these three chains in particular, a weight discrimination case would be difficult to prove due to the provision in employment discrimination law that is referred to as "BFOQ." "Bona Fide Occupational Qualifications" are employment requirements that might otherwise be discriminatory, but are judged to be acceptable because, without them, the "essence of the business operation would be undermined."

The BFOQ defense would assert that the core "cool customers" of Abercrombie and Fitch don't want to buy their clothes from someone who looks like their mother. The active healthy-eating customers at Whole Foods don't want product advice from someone who doesn't appear to consume what they sell. The people who are eager to visit a restaurant named after female body parts want to enjoy looking at the body parts that are serving them chicken wings and beer.

It is often questioned whether it is appropriate for a retailer or any company to use the appearance and image of its employees as an integral part of its brand image. But there's also a question about why individuals would want to work for an employer that imposes standards that they neither fit nor agree with.