Who needs to prove their case?

An ongoing controversy involves the case of two former Michigan Hooter waitresses, Cassandra “Cassie” Smith and Leanne Convery, who were both constructively fired for being “too fat” to represent Hooters and the image of a Hooters server.  Before I go into more specifics about the case, a few important pieces of background information.

First, Michigan is the only state which prohibits discrimination based on weight.  Currently, state and federal law prohibits against discrimination based on race, sex, sexual orientation, religious affiliation, but overall, protection has not been extended to include weight-based discrimination.  In 1976, Michigan passed the Elliot-Larsen Civil Rights Act (ELCRA) to include weight as a protected category.  Following Michigan’s lead, a few cities have enacted similar legislation, including San Francisco, CA; Santa Cruz, CA; Urbana, IL; Washington, D.C.; and Birmingham, NY.  Thus, part of the on-going controversy with Smith and Convery involves the legitimacy of the ELCRA, and whether or not weight should be a protected category against discrimination.

Second, Hooters requires all servers (which they only employ women to fill those roles) to maintain a particular image standard.  Of course, the primary part of a Hooters girl includes the standard issued uniform, which includes: “White Hooters tank top, orange shorts, suntan hose, white socks, solid white shoes, brown Hooters pouch, name-tag and of course...a smile! The Hooters Girl uniform cannot be changed or altered in any way.” Additionally, as all servers need to be “camera ready,” the company also provides additional guidelines regarding the Hooter girl appearance.  These include: wearing natural looking makeup (including mascara and lip gloss or lipstick), doing one’s hair, and practicing good skin care (including, removing makeup, drinking water, and eating fruits and vegetables).  These additional requirements, along with the uniform, regulate how Hooters girls can look, as Hooters wants to maintain a particular kind of image, that of an “All-American Cheerleader” or “Surfer-Girl-Next-Door” look. 

Now, more about the particular case.  Currently, the legal case in Macomb County, Michigan is underway.  For the legal case, legal precedent determines who needs to prove their case, or those who have the burden of proof.  For example, in criminal cases, the burden of proof rests with prosecutors to prove that the defendant committed a crime (because defendants are presumed innocent until proven guilty).  Within this specific court case, Hooters of Roseville, Inc. and Hooters of America, Inc. will need to defend their actions as not violating the ELCRA.  Thus, within the legal context, the company has the burden of proof to demonstrate that they committed no wrong. 

However, in the court of public opinion, many people have weighed in on their thoughts about the issue and they are not adhering the legal standard of burden of proof.  Rather than focusing on Hooters as a corporation doing wrong or focusing on the specifics of the ELCRA, media focuses on the bodies of Cassie and Leanne and constructs arguments about the case where the former servers need to prove that they were not too fat to serve; thus, the burden of proof rests with the servers and not the company. 

Although many stories focus on their bodies as proof, for the purposes of this blog entry, I am focusing on a specific media story about Cassie.  A local FOX news story interviewed Cassie about her situation.  The piece focuses on Cassie’s body and whether or not she constitutes someone who is “fat.”  Using video footage of Cassie twirling in her uniform, pictures of Cassie over her two years of service, and a ruler to demonstrate the skimpyiness of the orange shorts, the focus revolves around Cassie and her body.  Indeed, the voice-over during the visual displays of Cassie’s body tells the viewer that she is 5’8” and only 132 pounds.  And, according to the Body Mass Index (BMI), Cassie’s weight is considered normal for her height (see the calculator here).  Even though the BMI category does not adequately address lots of social issues and contains many issues, it does demonstrate one aspect in which her weight meets a social, cultural, or public burden of proof regarding what is deemed “appropriate.”

Thus, rather than focusing on the legal issues of the ELCRA or on why Hooters should need to be the one to defend itself, the argument shifted to what constitutes appropriate weight for a Hooters girl.  Indeed, even when the reporter takes it upon herself to attempt to interview the local Hooters restaurant where Cassie worked, she does not ask about why Hooters violated the ELCRA, but rather asks why they thought Cassie was “too big” to serve for them.  Thus, the media framing has effectively shifted the argument from a legal context where the company is on the defensive to a public context where Cassie must defend herself.