In my employment law class, students are always interested in sorting out how companies like Hooters can “get away” with only hiring women who, er, look a certain way. Almost every class, someone asks me whether bars can hire only “skinny” women, or women with blond hair, and so forth. I like those questions because in discussing them, students are challenged to think about how our human rights laws work.
I’ve mentioned Hooters before, when a man alleged discrimination on the basis of sex when the company wouldn’t hire him as a server. In a new lawsuit filed in Michigan, discussed in this Wall Street Journal article, two Hooters’ servers have alleged they were discriminated against when the employer told them to “to join a gym in order to lose weight and improve her looks so that she would fit better into the extra small-sized uniform.” One women who weighed 132 pounds and was 5′ 8” alleges she was placed on a 30 day “weight probation”. Here is the actual the pleading, which is an interesting read.
My employment law students may be wondering how these women have a discrimination case. What is the prohibited ground? Look at Section 5 of the Human Rights Code in Ontario to see the prohibited grounds. Which ground covers a woman’s weight or body type?
Is it sex? Could be, especially if there were male servers who were not held to the same standard of “fitness”, because the fitness standard could be a proxy for a certain female body type and only women could be held to that standard.
On the other hand, “sex” may be a harder argument if the employer requires male employees similarly to be “fit”. Perhaps that is unlikely in the case of Hooters if all servers are female (honestly, I have never been in a Hooters, so my “field research” is lacking!) Is it disability? Hardly. While being obese has occasionally been found to be a disability, weighing 132 pounds at 5’8″ clearly could not be a disability.
So, what’s left? Ethnic origin? Perhaps, if a woman could show that in her ethnicity, women a more likely to be larger than the standard required by Hooters. Presumably, some empirical social evidence would need to be called in support of that claim.
The difficulty for these sorts of cases in which employers want women who have a certain “look”, or a certain body type, is that our human rights statutes don’t usually prohibit discrimination on the basis of physical appearance, weight, “attractiveness”, or bust size. That means employers are free to pick and choose women according to these factors, unless the women can somehow bring themselves within a prohibited ground. I’ve discussed this before, in this entry, picked up by the Globe and Mail (Too Ugly to Land a Job?)
The Michigan Hooters’ employees have an easier case it seems than would a Canadian Hooters’ employee. The law there prohibits discrimination on the basis of “weight” and “height”. Amazing.
Do you think that Canadian human rights statutes should be amended to include weight, height, or physical appearance as prohibited grounds?
Why do you think that governments are concerned about legislating a prohibition on “appearance” discrimination?