And she may win.
With a tip of my hat to Abby Wargo at Law360, who reported this lawsuit here, I read a bartender’s federal complaint against her former employer.
The short of it is this.
The plaintiff worked for an adult entertainment venue but was not an adult entertainer or dancer. Instead, she sold and served drinks and food. The plaintiff alleges several supervisor/manager-level employees would tease her about her weight.
At some point, the plaintiff contracted COVID. She quarantined as instructed, during which she gained some more weight. She returned to work, and a few weeks later, the defendant fired her for poor performance. But, you guessed it, the plaintiff claimed that the defendant never communicated any specific performance issues.
So, she sued.
Among other things, the plaintiff alleges sex discrimination. But why? Apparently, there were other overweight male employees, but she bore the sole brunt of the teasing and comments about her weight. She was also the only one to lose her job.
Let’s say that the plaintiff’s weight motivated the defendant to ridicule and fire her. Is that illegal? Perhaps.
Many years ago, a West Hollywood bartender sued her employer for sex discrimination. She claimed that her employer punished her for gaining weight, but not her male colleagues.
The U.S. Equal Employment Opportunity Commission has also dabbled in this area, albeit on behalf of pregnant employees who work in restaurants. They argued that employers could not treat women who work in sports bars differently whose bodies change during pregnancy. One of these cases settled for $24,000.
Another one involving an employer that allegedly refused to schedule a pregnant server on a busy shift (ostensibly because her body would be a turn-off to the male customers) paid $15,000 to settle. In its press release, the EEOC noted that “employers cannot disadvantage the terms and conditions of a pregnant employee’s work to satisfy an assumed customer preference about the physical appearance of employees, which is likely untrue in any event.”
But what about a woman who is not pregnant and gains weight anyway? If physical appearance is a qualification for the job, e.g., a dancer, this case gets dismissed. However, if physical appearance is not a qualification of the job, the employer would not be able to treat the women differently than similarly-situated men.
But therein lies the rub in the plaintiff’s lawsuit. The plaintiff claims that she was treated differently than other overweight male employees. However, her complaint is silent about the jobs that these men filled. Were they bartenders too? Or were they something else entirely, like barbacks or security, where weight may not be an issue? Without an apples-to-apples comparison, her sex discrimination lawsuit is doomed.
Can the plaintiff ultimately prove sex discrimination? Yes, but she has to clarify (and prove) that the defendant treated other overweight male bartenders more favorably.