By J. DeVoy
A Michigan woman is suing Hooters for allegedly putting her on a 30-day “weight probation” period, leading to her constructive discharge. Accordingly, the first cause of action in her complaint against this chain of family restaurants was for weight discrimination.
Those in BarBri may already know that weight is not a suspect class, despite the fat acceptance movement’s desperate pleas to the contrary. But hold the phone, because in Michigan, weight is a recognized basis for discrimination — and has been since 1976!
From the Elliott-Larsen Civil Rights Act’s preamble:
AN ACT to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.
37.2102 Recognition and declaration of civil right; action arising out of discrimination based on sex or familial status.
Sec. 102. (1) The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.
The legislature said it; it must be true! While the “slippery slope” argument normally is a fallacious claptrap left for 1Ls, it does have some basis in reality and is evident in this statute’s rights “creep,” where things that have never constituted protected classes suddenly are. Once a right is given, it is not easily taken away.
Overweight people deserve the same fair treatment, dignity and respect as everyone else. But to create a protected class for their benefit opens the door to a panoply of new rights that have not been recognized elsewhere. Just as people with weight problems are not protected under Federal jurisprudence, neither are the short, stupid, lazy or ugly. If one such group is protected, then the others might as well be too, as such protections apparently can be handed out like cheap razor-stuffed candy on Halloween, where the sweetness of victory is betrayed by hidden costs only once it is too late to do anything about it.
The young woman’s claim against Hooters may have merit, but that’s a question for employment attorneys. It is absurd that one of her weight discrimination claim is based on a civil rights statute rather than a traditional discrimination cause of action, which would serve the same purpose. Hopefully additional litigation in this vein will show other states the error of Michigan’s ways.