Is Your Company Sanctioning Weight Discrimination? Don’t Cite Hooters in Your Defense

Hooters. You know the place known for … its really good wings (you thought we were going somewhere else with that!). As employment lawyers, we get a lot of questions from clients about this restaurant when asking about weight discrimination. “How can Hooters hire only small-waisted women with large breasts?” or “Why is it illegal for me to fire an employee because she is overweight, but Hooters can require all of its employees to look a specific way?” 

“We know it’s frustrating,” we tell our clients, “But the fact that Hooters does it is not an adequate defense. We wouldn’t put much weight in Hooters’ arguments (pun intended).” 

Here’s why.

Whether well-intentioned for health reasons or not, weight discrimination and weight-based requirements in the workplace may be unlawful. While there is no federal law in the United States that prohibits weight discrimination in the workplace, some states and cities do have weight discrimination protections. 

Meanwhile, employees in other jurisdictions might be able to pursue tangential claims related to gender and disability-based discrimination or workplace harassment. There are only very limited exceptions where an employer can not hire someone or fire someone for their weight. More on that later. 

First, let’s look at the wide-ranging impact of weight discrimination for employees and employers.

The most significant impact is on wages (for women!)

The significance of weight discrimination in the workplace cannot be overlooked. According to the U.S. Department of Labor Bureau of Labor Statistics (DOL BLS), for every 10% increase in a woman’s body mass, her income drops 6%. Or, as another study from a professor at Vanderbilt University Law School put it, obese women earn approximately $5.25 (22.3%) less per hour than normal-weight women; morbidly obese women earn approximately $8.12 (34.5%) less. 

To be clear, we don’t mean to say overweight men do not face workplace discrimination. Statistically, though, the numbers tell a significant story for women: Society holds women to a higher expectation; it isn’t enough for a woman to be good at her job; she must look good, too. 

I’m sure you’re reading this in disbelief, thinking you’ve never heard a female employee at your company vocalize not receiving a bonus because she gained weight. But alas, we wouldn’t need to waste our time on an article if it was so obvious! Indeed, most bias is implicit, an unconscious prejudicial attitude that an overweight woman is lazy, undisciplined, or even embarrassing to put in front of clients. 

Harassment and lost opportunities are also major players

“Weight” as a discussion topic presents itself all too frequently in the workplace. Employees exchange stories about their successful diets; executives analyze the cost that weight-loss drugs like Ozempic have on health insurance premiums; and, of course, there is always some level of watercooler gossip about the “skinny girl’s” eating disorder. 

An employee who is offended by comments like these could ultimately use these as allegations to support a hostile environment lawsuit. 

Beyond harassment, weight-based discrimination allegations can be at the center of failure to hire, promote, or wrongful discharge claims. A biased hiring manager may rely on stereotypes or speculation about an employee’s health or safety in withdrawing a job offer to an overweight applicant or not considering an obese employee for a promotion.

What is actually unlawful?

Despite clear statistical evidence demonstrating that weight discrimination in the workplace is real, Congress has failed to act. In the United States. As stated earlier, there is no federal law that prohibits weight discrimination in the workplace. There is a patchwork of states and local jurisdictions with weight discrimination protections, like Michigan, Washington D.C. and New York City.

Meanwhile, employees in jurisdictions without weight discrimination protections- say Texas or Virginia- might be able to pursue tangential claims if they feel they are on the receiving end of discrimination because of their body mass index. 

For example:

Gender-based discrimination: As mentioned, statistically, women face harsher biases in the workplace because of their weight, whether over or underweight, than men do. This negative bias may hurt a woman’s wages more than it would a man’s, and for purposes of a harassment claim, she can certainly rely on any comments, including well-intentioned ones, about body image, diet, exercise, or food consumption. 

Disability-based discrimination: Often overweight or underweight employees may present with underlying disabilities or health conditions (e.g., thyroid conditions, depression, hormone loss) that impact their weight. Federal law (and most states) protects employees from disability discrimination and harassment about their disability or its symptoms. In fact, many courts have ruled that obesity alone is an “impairment” under the Americans with Disabilities Act or a parallel state statute. If an employee’s weight is a resulting symptom of a medical condition, then any bias about their weight is a bias about their disability, which is clearly protected and, therefore, unlawful.

That said, an employee still must be able to perform the essential functions of the job.  Accommodating an employee’s weight does not mean an employer has to make exceptions to its expectations for that employee. If a flight attendant needs to be able to walk through airplane aisles or a public works employee needs to be able to fit inside a manhole, then ruling someone out of a position based on the fact that they cannot meet job-related expectations is a non-discriminatory basis for not hiring or later terminating that employee. Thus, to make a decision based on weight, the requirement must be truly related to the job. In other words, it must be essential to meeting the job’s expectations. 

Here’s where Hooters’ argument is weak: Having large breasts and a small waist is not essential to serving wings and bussing tables. Hooters’ “look” is a mere preference and not some bona fide occupational qualification. It is likely not significant enough to amount to a job-related requirement or an essential function of the job. 

What about a weight-loss program?

A well-meaning employer may want to help employees shed extra pounds. Any weight-loss or exercise program would need to conform to the U.S. Equal Employment Opportunity Commission’s wellness program guidelines. Foremost, the employees’ participation in any wellness program must be voluntary. There are limits on any financial incentive for participating in the program and restrictions on what type of information employers can collect in such a program and what they can do with the information. Because of the interaction between discrimination laws and the Affordable Care Act, employers need to consult with their legal counsel in designing any such program.  

How can your company prevent bias and promote body inclusivity?

1. Consider adding “body weight” to the list of protected classes in your employee handbook. Nothing prevents an employer from being more protective than the law requires. By adding weight as a protected characteristic in your Equal Employment Opportunity (EEO) and harassment policies, you at least make it a policy violation for an employee to treat another employee differently because of their weight. This act does not only protect employees, but it also protects the company. We’d much rather an employee be able to report weight bias concerns to the company to be investigated and, if necessary, remedied, before the employee determines that the only avenue is litigation. 

2. Educate, educate, educate. Train managers on how to check their own biases: Are they (even unconsciously) factoring an employee’s weight into their decisions? Train all employees on how to maintain professional conversations in the workplace, especially around eating habits, diets, weight loss, and body image. 

Apart from avoiding litigation, employers should strive to make all employees feel welcome and comfortable in the workplace so that they can perform their best. Eliminating fat bias can help everyone succeed.