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What You Can Learn From Hooters

Hooters Wrongful Termination Lawsuit

Hooters is facing a wrongful termination lawsuit. Sandra Lupo had been a waitress at Hooters since 2005. She’s 27 years old. Recently, she had to undergo brain surgery to remove a cranial mass. When she was cleared to return to work last July she met with her manager. Her manager said she had to wear a wig now during her shifts. Under the Americans with Disabilities Act (ADA) “qualified individuals" are protected from discrimination based on their disability. Under the ADA, a “qualified individual" is one who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires. Under the ADA a disability is any of the following:

· A physical or mental impairment that substantially limits one or more of the individual’s major life activities;

· A record of such an impairment; or

· Being regarded as having a such an impairment.

Hooters does not seem to care about discriminating against “qualified applicants":

· In 1997, three men from the Chicago area sued Hooters after being denied employment at an Orland Park, Illinois, restaurant. Each of them was awarded $19,100. Four men who filed a similar lawsuit in Maryland received $10,350 each. The settlement allows Hooters to continue attracting customers with its female staff of Hooters Girls. The chain agreed to create other support jobs, like bartenders and hosts, that must be filled without regard to sex.

· In 2009, Nikolai Grushevski, a man from Corpus Christi, Texas, filed a lawsuit because Hooters would not hire him as a waiter. Grushevski and Hooters reached a confidential settlement on April 13.

· In September 2009, the U.S. Equal Employment Opportunity Commission filed a lawsuit against a North Carolina charter airline (formerly Hooters Air) on behalf of Chau Nguyen, an Asian flight attendant fired three years prior after complaining only white workers were being promoted.

· In May 2010, a lawsuit was filed against Hooters in Michigan after an employee was given a job performance review and was told "that her shirt and short size could use some improvement" by two women who held positions at the headquarters in Atlanta. Michigan is the only state that includes height and weight as bounds for non-discrimination in hiring. The plaintiff alleges that the women made the offer of a free gym membership and that if she did not improve in 30 days, her employment would be terminated.

Hooters has argued that offering its customers the look of the “All American Cheerleader, Surfer, Girl Next Door" is the “essence of the business operation" and that essence would be “undermined if the business eliminated its discriminatory policy". Hooters has gone so far as to require female employees to sign that they “acknowledge and affirm" the following:

  1. My job duties require I wear the designated Hooters Girl uniform.
  2. My job duties require that I interact with and entertain the customers.
  3. The Hooters concept is based on female sex appeal and the work environment is one in which joking and entertaining conversations are commonplace.
  4. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating, hostile, or unwelcome.

So basically, Hooters has tried to get employees to sign that they “acknowledge and affirm" that they will not sue for sexual harassment.

Ms. Lupo’s case is a little different than other Hooters discrimination cases. Ms. Lupo is not some guy alleging gender discrimination because Hooters wouldn’t hire them to be a waiter wearing those orange shorts. Hooters settles those cases for little because they know a jury is not going to take the case seriously. However, Ms. Lupo is alleging wrongful termination on the basis of harassment and discrimination, namely disability discrimination.

Allegedly:

· Ms. Lupo went through a horrific event and tried to return to work.

· The Company required her to wear a wig.

· The Company refused to pay for a wig so Ms. Lupo had to borrow one.

· When Ms. Lupo borrowed a wig it exacerbated her condition.

· Rather than get rid of the wig requirement, Hooters responded by cutting her hours to point where Ms. Lupo had to quit.

Some people will ask, “Well, if she quit how can she allege wrongful termination?" Typically, the law provides for “constructive discharge." The California Supreme Court has held that an employee who leaves a job because of intolerable working conditions may state a claim for wrongful termination based on a “constructive discharge." But, in California, the employee must prove that the employer either intentionally created, or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation, a reasonable employer, would realize that a reasonable person in the employee’s position would be compelled to resign. It’s awfully tough to prove that in a down economy. But, quitting to find a better paying job when your employer has slashed your hours tends to resonate with jurors.

I’m betting Hooters settles this one quickly and for more than the others.

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues. He counsels, and represents employees, and writes a California Employment Law Blog.

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