Hooters Weight Discrimination Lawsuit

New Diversity, Hiring, Harassment, and Employment Law Questions About Obesity

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The media and blogosphere exploded in indignation when a Michigan Hooters waitress was told that her 132-pound body no longer met the appearance standards of a Hooters girl. This led to a weight discrimination lawsuit against the Hooters restaurant chain and sparked a heated debate about workplace obesity in retail businesses.

The Michigan Hooters waitress claims that she received nothing but positive ratings for customer service and teamwork and that should be enough for her to retain her position.

Although no formal research was conducted it's safe to say no one would identify customer service and teamwork as the primary reasons for their Hooters patronage. Good, bad, right, or wrong, Hooters doesn't hide what it stands for.  

The question becomes, does Hooters, or any retail organization, have the right to develop its identity in the marketplace and to require employees to be in alignment with that? Especially given that Hooters is not alone. Abercrombie & Fitch and Whole Foods have all faced public opinion and legal consequences of alleged weight and/or obesity discrimination against employees.  Are overweight and obese applicants and employees part of a legitimate protected class?  And what kind of new discrimination laws related to hiring and firing are in store for the  U.S. retail industry

Does Every Employer Discriminate?

The larger issue is where you draw the line in telling any company who they must consider as a viable employee.

A study published in the Annals of the New York Academy of Sciences concluded that attractive people received more offers and better pay than unattractive people. Should there be "ugly" discrimination laws?

Adrien Cohen, the author of "The Tall Book" found that tall people are 90% more likely to become CEOs at Fortune 500 companies.

Cohen also asserts that tall people make $789 more per inch per year than their shorter co-workers. Should there be height discrimination laws?

According to the Society for Human Resource Management (SHRM), 60% of private companies check credit histories and use credit scores to make hiring decisions, even if the open position has no money-handling or fiduciary responsibilities. Should there be financial discrimination laws too?

Should an employer be allowed to favor an Ivy League education over a state school or is that class discrimination? With absolutely everything else being equal, does an employer have the right to choose a better-groomed employee or is that fashion discrimination? Can you legally turn down applicants with tattoos or piercings, or is that considered to be individuality discrimination?

Statistically speaking, the only people in the U.S. who can walk into an interview without a legitimate claim to some sort of discrimination are tall, good-looking, wealthy, Ivy League-educated white men dressed in Armani who probably aren't concerned if they get turned down because according to "The Tall Book" they're predestined to be a CEO someday.

How Much Say Should an Employer Have?

If society keeps identifying groups and adding discrimination laws to the books that "protect" those groups, then is the workplace moving away from employers' rights to choose, and moving towards all hiring decisions being made in a court of law?

As an employer, it should be your right to use your own discretion and best judgment when making hiring decisions. And, if your best judgment is wrong, you'll be the one to bear the burden.

Ultimately, it is always the challenge and the responsibility of applicants to convince a hiring manager that they are the best person for the job. If something about you gives a potential employer a reason to not hire you, it's up to you to convince the hiring manager otherwise. With so many candidates vying for the same spot, sometimes there's no good reason you weren't chosen. It's simply that somebody had to be eliminated. There is not a hidden discrimination agenda behind every employment rejection these days, and it would be inappropriate to start drafting more discrimination laws based on that assumption.

In the case of the (not-so) hefty Hooters girl, it's unlikely a landmark weight discrimination judgment will be made. It just happens that Michigan is the only state in the U.S. with a specific weight discrimination law. San Francisco, Santa Cruz and the District of Columbia also have weight discrimination laws where overweight and obese people know for certain that they are playing on a level employment field.

In the end, Hooters settled its lose-it-or-leave-it case filed by the Michigan waitress in arbitration. But, at this point, there are more questions than answers surrounding the issue of weight discrimination, and it's going to take more court rulings to know just where the boundaries of weight in the workplace will be established. Until then, retail leaders and hiring managers are smart to stay on top of the situation and be mindful of the consequences.