Weight requirement for new hires is a "loser" at summary judgment
Posted on 12/06/2013 at 01:21 PM by Russell Samson
The EEOC's case against a Weight Watchers franchisee for its refusal to hire a pregnant job applicant because she was over her goal weight will be allowed to proceed to trial after a federal district court in Michigan denied summary judgment for the franchisee. EEOC v. The WW Group, Inc., d/b/a Weight Watchers, Case 2:12-cv-11124 PDB-MAR (E.D. Mich. Dec. 2, 2013). Case Facts The Weight Watchers franchisee in Michigan defined a lifetime member as one who has achieved goal weight and maintained that goal weight for six consecutive weeks. (It is not clear whether this is also true of Weight Watchers, International, generally.) This franchisee told members that once lifetime member status was achieved, one was eligible for employment and other privileges -- at least through this franchisee.
Wendy Lamond-Broughton had been a member of Weight Watchers for several years and achieved lifetime member status in July 2005. She apparently kept attending meetings. She gained 30 pounds during her pregnancy with her first child, but she was able to get back to her Weight Watchers goal weight by December 2008 after giving birth in August 2008 all while apparently still attending Weight Watchers meetings. In early March 2009, Broughton gave the franchisee a card indicating her interest in employment as a group leader or receptionist, when she was 9.4 pounds below her goal weight. Later that same month, she became pregnant with her second child. In early July 2009, Broughton weighed-in at a meeting and had gained 7.4 pounds. Immediately after that meeting, she stopped attending Weight Watchers meetings, apparently due to a general policy of the parent franchise organization that does not allow pregnant women in the program. [I found the following general policy statement of Weight Watchers International about pregnancy through a Google search: 'Weight gain is an important part of a woman's prenatal medical care and is best managed by her physician. Weight Watchers does not provide any programs or services to women who are pregnant. However, achieving a healthy body weight prior to conception and then returning to that weight after giving birth is encouraged.']
In September 2009, in response to her months-earlier expression of interest, Broughton was invited to attend an informational meeting for persons interested in employment at this Michigan Weight Watchers franchisee. Upon learning that Broughton was pregnant, however, she was 'disinvited' to the meeting. There is a dispute as to whether she was told that the franchisee did not hire pregnant women, or whether she was told she was ineligible for employment because her pregnancy weight gain put her outside of the 'Weight Watchers International BMI goal weight range.' The defendant Weight Watchers franchisee had a written 'Staff Goal Weight Policy' for all staff who had contact with either members or the general public. The franchisee asserted that, 'there are legal, moral and ethical reasons to have a staff goal weight policy.' The written policy also had a section devoted to pregnant or nursing staff that permitted those employees to weight gain 'within their doctor's recommended weight range,' but required that after the pregnancy/nursing was completed, the individual develop and adhere to a plan to get back to goal weight. Broughton filed a complaint with the EEOC, contending the franchisee's refusal to permit her to apply for employment constituted unlawful sex (and pregnancy) discrimination. The EEOC subsequently brought an action on Broughton's behalf against the franchisee in federal district court in Michigan. Showing what I personally regard as remarkable restraint (at least when viewed against some of the more recent litigation the EEOC has sought to maintain), the EEOC did not make a 'disparate impact' claim (i.e., the EEOC did not challenge a neutral policy that, nevertheless, has an adverse consequence on persons in a certain protected class). Rather, the EEOC's suit focused solely on a disparate treatment claim for Broughton, alone. The EEOC contended that by informing Broughton that she need not bother interviewing for a position as a group leader because the franchisee didn't hire pregnant women (the facts as Broughton saw them), the franchisee unlawfully discriminated against her on the basis of pregnancy. Denial of Summary Judgment for the Franchisee On December 2, 2013, the federal district court in eastern Michigan issued a decision denying a motion for summary judgment filed by the Weight Watchers franchisee. The franchisee had contended that the lawsuit should be summarily dismissed because the EEOC could not establish that Broughton was 'qualified' for the positions she sought because she was not in compliance with its goal weight policy. According to the court's opinion, the franchisee drew an analogy in its briefing to an African-American who applied for a job as an airline pilot but who did not have a valid pilot's license, and who was told that he wasn't going to be hired because of his race. The defendant contended that the African-American would have no claim for unlawful race discrimination, despite what he was told, because he objectively lacked the pilot's license that was required for the job. The federal district court judge's reaction to that argument could be paraphrased as 'HA!' The judge did not find the franchise's analogy to be analogous to the facts of the case. An employer may have a qualification requirement, even an objective qualification requirement, but where that requirement is totally unrelated to job performance, it is an insufficient basis on which to refuse to hire an individual. Also, the federal court judge believed that the exception for pregnant and nursing women in this franchisee's goal weight policy undercut its argument that being at goal weight was a job requirement, and that policy actually might be viewed as a 'concession that pregnant group leaders can effectively continue in their positions without destroying the credibility of the [Weight Watchers franchisee's] program.' While the court's decision allows the EEOC to move the case forward to trial, there has been no trial, yet. There is only a determination that the EEOC, acting on behalf of the single plaintiff, might prevail at trial because a 'reasonable juror could conclude that [Broughton's] pregnancy weight gain was entirely unrelated to her ability to be an effective group leader or receptionist.' Lessons for Employers Setting aside 'disparate impact' theories, employers would be wise to review job qualifications of their jobs, generally, to determine (1) whether there is a demonstrable tie between each qualification and the ability to perform the job, and (2) whether exceptions have been made to those qualifications which undermine any claims regarding the necessity for them. This case brings back memories of Title VII cases from decades ago where stewardesses (n/k/a flight attendants) challenged height-and-weight and customer preference job 'requirements' that had become part of regular industry practice. Therefore, as you review your job requirements, don't be lulled into a false sense of security that a job requirement is lawful and valid because everyone's doing it and it is accepted within your industry today.
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- Russ Samson
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