Change in Michigan Law Opened Door to Lawsuits Against Hooters

June 8, 2010

An attorney for two former waitresses in Michigan who said Hooters fired them because of their weight told a newspaper the case is about civil rights. But Hooters said the appearance of its waitresses is a legitimate business concern.

“This really is the cornerstone of civil rights: You can’t discriminate based on appearance,” said attorney Richard Bernstein, who represents Cassie Smith and Leanne Convery in lawsuits that claim they were fired as waitresses because they weren’t slim enough.

Michigan is the only state with a law that prohibits discrimination based on weight, the Detroit Free Press reported Sunday. The law was passed in 1976 as part of a broader law that also forbids discrimination based on age and height after female auto employees and prospective police officers and firefighters complained that they were denied jobs because of unfair height standards that favored men.

Six cities — San Francisco; Birmingham, N.Y.; Santa Cruz, Calif.; Madison, Wis.; Washington; and Urbana, Ill. — have adopted their own weight discrimination laws.

But the law remains a rarity because of the widespread belief that weight is something that can be voluntarily controlled, the newspaper said.

“People still believe obesity is a self-inflicted condition or disease,” said James Zervios, spokesman for the Tampa, Fla.-based Obesity Action Coalition. “It’s still acceptable to make fat jokes.”

And some people say appearance — including weight — can be a legitimate factor in hiring decisions.

Hooters officials say the law shouldn’t apply because their waitresses can be considered entertainers, for whom appearance is a legitimate concern, the Free Press reported.

“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 law is “one of the long list of things that make it harder for us to do business in Michigan than in our 45 other states,” he said.

Hooters’ servers wear tank tops and tight shorts. Atlanta-based Hooters of America has said it doesn’t enforce a weight requirement.

About one lawsuit a year alleging weight discrimination is filed in Michigan, the Free Press said. In 2005, a jury awarded $284,000 to a 360-pound Bad Axe man who claimed he was fired from his job at Continental Rental because of his weight. His attorney said his weight stemmed from a medical condition.

“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.

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