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Hooters, Lane Bryant, and Whole Foods Face Weight and Obesity Discrimination

Are New Hiring Discrimination Laws in Store for the U.S. Retail Industry?


Hooters, Lane Bryant, and Whole Foods Face Weight and Obesity Discrimination
Reprinted with Permission from WholeFoods.com

In April, 2010, Lane Bryant, (CHRS) the retailer of plus-sized women's clothing, was reportedly denied airtime for its plus-size lingerie ad by both ABC and Fox television networks. Lane Bryant contends that the networks rejected the ads because of the size of the models in them. After viewing the ad, I think it might also have something to do with the fact that the models were in their underwear and Lane Bryant wanted to air the ads during family-friendly shows like American Idol and Dancing With the Stars. Regardless, the weight discrimination card was played, and the company has gotten more attention from the media coverage of the dispute than it probably would have gotten as just one of many sponsors of a hit TV show.

Most Recent Lawsuits and Judgments in the U.S. Retail Industry >>

Earlier this year, Whole Foods (WFMI) was widely criticized for initiating an employee health incentive program which rewards employees with a healthy body mass index (BMI) bit giving them an increase in their employee discount for in-store purchases. Instead of being viewed as an innovative workplace health benefit, critics argued that it was blatant discrimination against overweight employees, as well as an invasion of their medical privacy, even though participation in the program was voluntary.

The Whole Foods program raised questions about whether the company also had discriminatory hiring practices which favored fit and healthy employees. Does a store that caters to a health-conscious clientele have the right to choose employees that match the characteristics of its core customers? Does Abercrombie and Fitch have the right to just hire youth and beauty for its sales floor? Does Hooters have the right to only stock small-sized uniforms and use the appearance of its waitresses to give its otherwise indistinct dining experience some competitive advantage?

In the case of these three chains in particular, a weight discrimination case would be difficult to prove due to the provision in employment discrimination law that is referred to as "BFOQ." "Bona Fide Occupational Qualifications" are employment requirements that might otherwise be discriminatory, but are judged to be acceptable because without them, the "essence of the business operation would be undermined."

The BFOQ defense would assert that the core "cool customers" of Abercrombie and Fitch don't want to buy their clothes from someone who looks like their mother. The active healthy-eating customers at Whole Foods don't want product advice from someone who doesn't appear to consume what they sell. The people who are eager to visit a restaurant named after female body parts want to enjoy looking at the body parts that are serving them chicken wings and beer.

It is often questioned whether it is appropriate for a retailer or any company to use the appearance and image of its employees as an integral part of its brand image. But there's also a question about why individuals would want to work for an employer that imposes standards that they neither fit nor agree with.

The media and blogosphere expressed indignation that the Michigan Hooters waitress was told that her 132-pound body no longer met the appearance standards of a Hooters girl. But when you make a decision to voluntarily work for a company that openly objectifies women to gain market share and enhance profits, aren't you agreeing to be part of the objectification? And why would you be shocked or offended, then, when that same company deems your appearance to be insufficiently objectifiable, and therefore, bad for business?

The Michigan Hooters waitress claims that she had received nothing but positive ratings for customer service and teamwork and that should be enough for her to retain her position. Although I haven't conducted a formal research study with Hooters customers, I am confident that they would not identify customer service and teamwork as the primary reasons for their Hooters patronage. Good, bad, right, or wrong, Hooters is what Hooters is.

Does Hooters, or any retail organization, have the right to develop its identity in the marketplace and to require employees to be in alignment with that identity?

The larger issue here is where we draw the line in telling any company who they must consider as a viable employee. A study published in the Annals of the New York Academy of Sciences concluded that attractive people received more offers and better pay than unattractive people. Should there be "ugly" discrimination laws?

Adrien Cohen, the author of "The Tall Book" found that tall people are 90% more likely to become CEOS at Fortune 500 companies. Cohen also asserts in the book that tall people make $789 more per inch per year than their shorter co-workers. Should there be height discrimination laws too?

According to the Society for Human Resource Management (SHRM), 60% of private companies check credit histories and use credit scores to make hiring decisions, even if the open position has no money-handling or fiduciary responsibilities. Should there be financial discrimination laws too?

Should an employer be allowed to favor an Ivy League education over a state school or is that class discrimination? Is it fair to favor a high GPA or is that intelligence discrimination? With absolutely everything else being equal, does an employer have the right to choose a better groomed employee or is that fashion discrimination? Can you not legally turn down applicants with tattoos or piercings, or is that considered to be individuality discrimination?

The truth of the matter is...

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