A Michigan judge served up a legal set-back to Hooters of Roseville, Inc. and Hooters of America Inc. in a decision announced on August 25. Macomb County Circuit Judge Peter Maceroni found that the case of two Hooters waitresses who claim they were illegally fired due to weight bais may proceed.
As discussed in a prior post on FindLaw's Injured, the case of former Hooters waitress Cassandra Smith (now joined by another waitress, Leanne Convery) alleged discrimination based on her weight. According to the suit, Smith claimed that she had received good reviews and a promotion to shift leader, before being placed on "weight probation," and told to join a gym. According to the Complaint, Smith is 5'8" tall and 132.5 pounds.
The court however, did not reach the issue of weight bias or discrimination. According to the Detroit Free Press, Hooters had moved to have the case dismissed because Smith and Convery had singed employment contracts binding all parties to arbitration over any discrimination claims. At this time, Judge Maceroni has said the case may continue in court because Smith and Convery, "may not have knowingly waived their right to litigate their claims in court should their claim be proven that they were never afforded an opportunity to take the agreement with them to consult with counsel."
This is a decision that is based on what some would see as a "technicality" as opposed to the merits of the case. The Free Press reports Michigan has an ahead of the curve law prohibiting employment discrimination based religion, marital status, race, gender, age, height and weight called the Michigan Elliott-Larsen Civil Rights Act. However, neither the company's challenge to the case nor the judge's decision today was based on that. The company merely tried to have the case pushed out of court and into arbitration.
Arbitration is a formal mechanism for resolving disputes that differs in several ways from the court process. One difference is that the hearings are heard by arbitrators rather than by judges or juries and are not limited by strict rules of evidence. One of the elements of arbitration which could benefit Hooters and could have worked against the plaintiffs is the lack of a jury, who may well be more sympathetic to the plaintiff's claims.
"For now, he rules the case stays in Circuit Court," Michael Gatti, lawyer for Cassandra Smith, told the Detroit Free Press.