Lost in Translation: Weight and Pregnancy Discrimination in Michigan

Lost in Translation: Weight and Pregnancy Discrimination in Michigan

 On April 7, 2014, the EEOC issued a press release announcing that Weight Watchers had settled a pregnancy discrimination case.  According to the press release, the company told a woman who had was a lifetime member and who was interested in employment that it did not hire pregnant woman.  During the litigation, an issue arose with respect to the company's unwritten policy that an applicant must be at goal weight to be eligible for employment.  The EEOC did not challenge the legality of the goal weight requirement and did not claim that the policy had a disparate impact on pregnant women.

The company filed a motion for summary judgment on the basis that the woman was not qualified because she was not at her goal weight.  The reason for the standard is that the inability of an individual to maintain the goal weight may raise questions in members' minds as to the credibility of the program. The EEOC cannot question the company's business judgment in adopting a requirement that is crucial to the credibility of the program.  The company further argued that court must consider whether the requirement is a BFOQ if it considers the fact that the reason for the over goal weight is solely attributable to the pregnancy.  The court found that there were genuine issues of fact as to whether the enforcement of the applicant goal weight policy applied to an applicant who is over goal solely by reason of pregnancy related to the essence or mission of the company.  The court also found that the company did not produce sufficient evidence to permit a finding that it had established a BFOQ as a matter of law.

This case arose in Michigan.  Michigan is the only state whose civil rights act prohibits weight discrimination.  The settlement with the EEOC did not address any state law issue.  Were the company to be sued in state court, it would be in the position of having to establish a BFOQ since its actions were based on the woman's weight.  As the court noted in its opinion, the burden is on the employer to establish the BFOQ by showing the requirement relates to the essence or central mission of the employer's business.  That is an issue for another day.

Employers in Michigan have long been aware of weight as a protected class.  A job qualification is best put in writing if it is going to be the object of a BFOQ defense.

 For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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