She’s Not Heavy, She’s My Sister

INTRODUCTION The lead plaintiff in the Hooters weight bias case is Cassandra Smith, who interestingly measures out at 5'8" tall and 132.5 pounds. (Roth, 2010). One popular measure of fitness that has gained currency in recent years is the so-called Body Mass Index (BMI). According to the BMI, which is determined by a combination of height and weight, Smith has a BMI between 18.5 and 24.9, which is considered to be in the normal range. How normal? Well, that range is characterized as follows: "People whose BMI is within 18.5 to 24.9 possess the ideal amount of body weight, associated with living longest, the lowest incidence of serious illness, as well as being perceived as more physically attractive than people with BMI in higher or lower ranges." (BMI Calculator, 2010). As a caveat, however, since Body Fat Percentage calculations use total body weight and not estimates of lean muscle mass and fat, BMI cannot determine between the overweight and the more muscular (in other words, you could be incredibly fit and muscular and your BMI would indicate you are overweight). Hooters has never made a secret of the fact that they hire attractive women as waitresses in their chain. In fact, the Hooters Restaurant Mission Statement explicitly establishes that such woman are a part of their identity: We are committed to providing an environment of employee growth and development so that we can provide every guest a unique, entertaining dining experience in a fun and casual atmosphere delivered by attractive, vivacious Hooters Girls while making positive contributions to the communities in which we live [emphasis added]. (Hooters Restaurant Mission Statement, 2008). According to the Hooters website, "[T]he element of female sex appeal is prevalent in the restaurants, and the company believes the Hooters Girl is as socially acceptable as a Dallas Cowboy cheerleader, a Sports Illustrated swimsuit model, or a Radio City Rockette." (About Hooters, 2010). NO MALES NEED APPLY The Cassandra Smith case is not the first time Hooters has faced a legal issue involving their practice of featuring only attractive females as servers in their restaurants. In 1991, the Equal Employment Opportunity Commission (EEOC) began an investigation of Hooters for discriminatory hiring practices against men. Title VII of the Civil Rights Act (CRA) of 1964 prohibits discrimination in employment based on gender. The EEOC's investigation into this issue lasted for several years. In 1995, Hooters of America struck back: . . . probably the greatest marketing coup came in 1995 when Hooters of America hired a hairy male actor and dressed him in a Hooters waitress outfit to poke fun at allegations that Hooters restaurants discriminated against men. Hooters of America ran full-page advertisements showing "Vince" in USA Today and the Washington Post. But more importantly, according to then vicepresident of marketing Michael McNeil, television camera crews showed up at every Hooters restaurant in the United States the same day to do local stories. (See Appendix A, Vince Gigliotti, the Hooters Guy). Moreover, on November 15, 1995, the chain took the EEOC's charge public with a 100 Hooters Girl march on Washington D.C. Hooters received support from the nation's media, calling the charge "another example of ridiculous government waste," and some 500,000 Hooters customers supported the chain by sending postcards to Congress. (About Hooters, 2010). Nevertheless, in 1996, three male plaintiffs launched a lawsuit as representatives of a class action against Hooters "because of defendant's refusal to hire men to work the 'front of house' positions of wait staff, bartender or host." (Latuga v. Hooters). In 1997 the case resulted in a settlement that required no change in policy, acknowledging that "being female is reasonably necessary" to the performance of the Hooters Girl's job duties. The most recent challenge to Hooters gender-specific hiring policies came in 2009 when a Texas man brought a class action lawsuit for Hooters' refusal to hire males as waiters. …