Question

CIRCUIT COURT
Macomb County, Michigan

Hooters restaurants are known for spicy chicken wings, the Owl mascot (i.e., “Hooters”) and Hooters’ girls, dressed in, as the company describes it, “white Hooters tank top, orange shorts, suntan hose, white socks, solid white shoes, brown Hooters pouch, name-tag and of course ... a smile!” Hooters only hires female servers and readily admits that “the element of female sex appeal” is part of its business, but no more so, it argues, than the “socially acceptable” Dallas Cowboy Cheerleaders, Sport Illustrated swimsuit models, or Radio City Rockettes. Hooters states, “The ‘nearly world famous’ Hooters Girls are the cornerstone of the Hooters concept, and as part of their job, these all-American cheerleaders make promotional and charitable appearances in their respective communities. Hooters hires women who best fit the image of a Hooters Girl to work in this capacity.” Hooters provides detailed guidelines on its website about hair, eyes, skin, makeup, and exercise. Consistent with maintaining the image of a Hooters Girl, all of its female waitstaff must attend image classes and pass an image quiz.

Hooters is being sued for discrimination by two waitresses from Roseville, Michigan: Cassandra Smith and Leeanne Convery. Smith received positive performance evaluations and was promoted to shift supervisor. But at her last evaluation, the 5'8" Smith says she was advised to lose weight and join a gym, despite dropping from 145 pounds, when hired, to her current 132.5 pounds. She says she was given 30 days to lose more weight, and when she didn’t, was fired. Says Smith, “I had these two women from [Hooters headquarters in] Atlanta telling me I had 30 days to make an improvement, and I didn’t know what I’m supposed to improve. I was proud of myself, working out the last months, losing 10 pounds to get ready for my summer body. For that (phone call) to happen, it was almost a slap in the face.” Convery, who is 4'11" and weighs 115 pounds says she was also placed on weight probation and then fired, despite losing 15 lbs.

In a written statement, Hooters said, “No employee in Michigan has been asked to lose weight and … the company does not enforce any weight requirement.” Company spokesperson Mike McNeil said, “We never mentioned weight. We never mentioned pounds. We never mentioned scales.” But, he said, “We have an image to uphold. We’ve been upholding it for 27 years. Hopefully, we'll be doing it for another 27 years.” Moreover, he said, “You’re hired based on the image you have when you walk through the door.”

As the judge in the case, you’ve got a number of key determinations to make. First, the women are basically arguing that being fired for being too heavy is akin to being fired because of their age, religion, sex, color, or national origin. In short, they say they’re being discriminated against because of their weight. So, if Hooters fired them because they were too heavy, is that illegal under state and federal law? Second, Hooters will claim that the image of the Hooter Girl is central to their business and consequently allows them to discipline and fire waitresses for not maintaining that image. This is known as a bona fide occupational qualification (BFOQ). When a BFOQ is “reasonably necessary to the normal operation of that particular business,” personnel decisions can be made on the basis of race, color, religion, sex, or national origin. Is the Hooter Girl image, and more specifically, the weight of a Hooter Girl, a BFOQ and thus a legally justifiable reason for Hooters’ hiring, firing, and promotion decisions? Finally, Convery claims that since giving birth to her son, she has had problems maintaining her weight. In other words, having children changes a woman’s physique, making it more difficult to return to one’s pre-baby weight. If that’s so, could she possibly have a legal case on the basis of the Americans with Disability Act?

If you were the judge in this case, what would you do? Why?

Answer 1

1.

Answer:- Under federal law when there is a bona fide occupational qualification(BFOQ) it is legal to hire someone based on sex, religion, color, or national origin if it is necessary for that particular business to operate. So, if Hooter fired the girls because they were too heavy then he did nothing illegal because he has been running the restaurant business for the past 27 years and has an image that has not changed. Their hiring policy is based on the image which is part of business operations.

2.

Answer:- BFOQ is a quality that allows employers to make decisions regarding hiring or firing employees based on protected class status such as sex, religion, etc. In this case, Hooters fired the girls based on their image because he considers that Hooter Girl image is the cornerstone of their business, so, if the girls didn't fit the position then it is completely justifiable for Hooter to fire them However about the bodyweight he denied firing anyone based on their weight.

3.

Answer:- Ms. Convey's case about her body weight is difficult to prove because Hooters has said in a written statement that "No employees have been asked to lose weight in Michigan and the company does not enforce such weight requirement". Also, it will be difficult for BFOQ to be in favor of Ms.Convey and it can be perceived as unethical from all women around the world especially those who have a child.

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