Some call obesity the next smoking, meaning that now that employers have had a multi-faceted attack on reducing health costs related to smoking, they will move on to obesity. The CDC reports that about 40% of U.S. adults are obese, while about 20% of adults smoke. The rate of obesity has been growing rapidly, while the number of smokers has been declining. The annual healthcare costs related to obesity exceed that of smoking. This focus on obesity leads ineluctably to concerns of “weight discrimination.
Michigan’s Elliot-Larson Civil Rights Act explicitly bans weight discrimination, but a recently filed case illustrates that weight discrimination does not necessarily have anything to do with obesity.
In Cassandra Marie Smith v. Hooters of Roseville, Inc. and Hooters of America, Ms. Smith alleged she was 5’8”, 145 pounds when Hooters hired her, but two years later, when she weighed 12 ½ pounds less, her employer advised her to join a gym “to lose weight and improve her looks so that she would fit better into the extra small-size uniform.” She alleges that she was placed on 30 day “weight probation” and was constructively discharged that same day “because she was unable to meet the Hooters’ discriminatory and illegal requirements of a ‘Hooters Girl’.”
Ms. Smith alleges that no one had medical training or other information upon which to base a decision to place her on “weight probation,” that her weight was within the medically acceptable range, and that no one explained the proper fit of the uniform or the degree of “thinness” which would satisfy her employer.
She claims that being told that she would lose her job because she was not the correct weight is “per se” weight discrimination and that the weight requirement for female employees is per se gender discrimination. She also claimed that her employer’s telling her co-workers that she had been placed on “weight probation” and “giving her an ultimatum to change her appearance and weight in an unrealistic manner,” among other things, intentionally caused her emotional distress,
The Smith case is an anomaly in that the handful of discrimination cases based on weight do not deal with a plaintiff “within range.” What Smith establishes is that weight discrimination and obesity discrimination are two different legal claims.