By J. DeVoy
A Michigan woman is suing Hooters for allegedly putting her on a 30-day “weight probation” period, leading to her constructive discharge. Accordingly, the first cause of action in her complaint against this chain of family restaurants was for weight discrimination.
Those in BarBri may already know that weight is not a suspect class, despite the fat acceptance movement’s desperate pleas to the contrary. But hold the phone, because in Michigan, weight is a recognized basis for discrimination — and has been since 1976!
From the Elliott-Larsen Civil Rights Act’s preamble:
AN ACT to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.
Height, too? I’m shocked, just shocked that Michigan is such an abject failure with touchy-feely crap like this spewing forth from its legislative orifice.
37.2102 Recognition and declaration of civil right; action arising out of discrimination based on sex or familial status.
Sec. 102. (1) The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.
The legislature said it; it must be true! While the “slippery slope” argument normally is a fallacious claptrap left for 1Ls, it does have some basis in reality and is evident in this statute’s rights “creep,” where things that have never constituted protected classes suddenly are. Once a right is given, it is not easily taken away.
Overweight people deserve the same fair treatment, dignity and respect as everyone else. But to create a protected class for their benefit opens the door to a panoply of new rights that have not been recognized elsewhere. Just as people with weight problems are not protected under Federal jurisprudence, neither are the short, stupid, lazy or ugly. If one such group is protected, then the others might as well be too, as such protections apparently can be handed out like cheap razor-stuffed candy on Halloween, where the sweetness of victory is betrayed by hidden costs only once it is too late to do anything about it.
The young woman’s claim against Hooters may have merit, but that’s a question for employment attorneys. It is absurd that one of her weight discrimination claim is based on a civil rights statute rather than a traditional discrimination cause of action, which would serve the same purpose. Hopefully additional litigation in this vein will show other states the error of Michigan’s ways.
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Fascinating. I wonder how airlines feel about this. I believe several have adopted Southwest’s policy of requiring very large people to purchase two seats. If they fly into Michigan, will they have problems?
Does this mean that 98-pound weaklings can apply to become steel workers, and must receive equal opportunity? Grossly deformed individuals with hair growing out of every orifice can demand equal opportunity to be restaurant greaters? One-legged accident victims, disfigured with horrible scars, can seek work as lap dancers?
I think the Constitution needs a “maintenance” clause. We are all created equal (well, some with a few genetic defects) but over the ensuing years, not all of us maintain our bodies equally. And this should be taken into account when considering the equality thing. Not that it ever will be.
I think one question is, do any of those conditions — 98-pound weaklinghood, gross deformity and hirsuteness, disfigured monopodism — have an effect on the person’s ability to perform the job? If so, then maybe there is a valid reason to refuse employment. If not, then not.
“One-legged accident victims, disfigured with horrible scars, can seek work as lap dancers?”
God, I wish! Wait, what?
Yeah. And you’d think it would be obvious to any reasonable person.
Perhaps reasonable persons are not as plentiful as I thought.
Hooters made a big mistake here. They should have just kept her on, and assigned her to the fat people’s tables.
Is part of her case that she ate the food, and that made her fat?
No.
Not that I don’t like reading your posts, but how the hell do you post so much and study for the bar? Given the quality and content of your posts, I’m assuming you’ll pass (not that I’m an expert or anything), and when you do, I’ll buy you a beer. Cheers.
I wrote this from 1-2 am; the other recent post was written around the same time period. I’m feeling the study crunch in terms of volume of posting.
Well be sure you take a day off or two before the end of July. Best of luck.
In an ironic follow up a NY woman was fired for being too sexy to be a banker. Maybe they should switch jobs.
http://www.villagevoice.com/2010-06-01/news/is-this-woman-too-hot-to-work-in-a-bank/1
Makes me wonder though if Hooters can claim you need to look good to work here, it would seem fair that a bank can claim you need to look ‘matronly’ to be a teller.