Thursday, April 25, 2013

Hooter's Waitress Alleges That Brain Surgery Resulted In Her Losing To Her Job

HootersA waitress at a Missouri Hooter's restaurant alleges that her post-brain surgery appearance cost her her job.  Following the removal of a brain tumor, her bosses at Hooters ordered her to wear a wig to cover up her bald head and surgical scar.  She responded that she couldn't afford a wig (Hooter's didn't offer to pay for it) and when she tried to wear a borrowed one, it hurt her healing wound.  Then, according the the waitress, her hours were reduced so much that she had to quit.  Our own Marcia McCormick was quoted on her ADA suit in the ABC News story:

Marcia McCormick, an associate professor of law at St. Louis University, said Lupo's surgery to remove a brain mass qualifies as a disability, but that Hooters could argue that her appearance was a bona fide qualification for her job.

"In the disability context, if Hooters is to say she's not as attractive now without this wig, if they're selling her attractiveness that might be a real function of her job and mean she isn't qualified by the Americans With Disabilities Act," McCormick said.

"Most companies can't say something like this, but Hooters sells this experience," she said.

There's at least something of a good ending, no matter what happens to the case, as the waitress, who was a nursing student at the time, is now employed as a trauma nurse.

Hat Tip:  Joe Seiner

-JH

http://lawprofessors.typepad.com/laborprof_blog/2013/04/hooters-waitress-alleges-that-brain-surgery-resulted-in-her-losing-to-her-job.html

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Comments

Southwest Airlines (at the time, Love Air) tried "attractiveness as BFOQ" many decades ago and got slapped down hard. Can't see why this case would be any different.

Posted by: Simon | Apr 26, 2013 6:40:15 AM

What about a reasonable accomodation. Surely, with the accomodation of a wig provided by Hooters, she could perform the essential functions of her job.

Posted by: Bill | Apr 29, 2013 10:32:08 AM

The difference is that the court at issue did not agree that the purpose of the airline was to sell a sexualized experience--the job of the flight attendants was generally considered passenger safety. There have been a number of suits against Hooters, none of which has made it into a courtroom I don't think, but Hooters claims, and many people seem to agree that they are significantly different from Love Air. Hooters is classified within the restaurant industry as a "breastaurant," with part of the business model explicitly selling a sexualized experience to predominantly heterosexual male customers and encouraging large tips to the waitresses as payment in part for this entertainment. I don't think that Love Air made the argument that they were selling a sexualized experience--instead they argued that businessmen found attractive young women more comforting.

Posted by: Marcia | Apr 29, 2013 1:45:08 PM

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