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Lawsuit says Hooters waitress forced out after surgery

Updated: 2013-04-06T12:19:05Z

By Robert Patrick

St. Louis Post-Dispatch

— ST. LOUIS Sandra Lupo just wanted to go back to the job that was putting her through nursing school.

She had long been a waitress at the Hooters restaurant in St. Peters, where tight tops and short shorts reinforced the chain's claim of being “delightfully tacky.” But brain surgery sidelined her for about a month last summer, leaving her with buzz-cut hair and a healing scar.

After being promised that she could return that way, Hooters bosses changed course and told her she could not work without a wig — a condition that would impair her healing — according to a recent discrimination lawsuit she filed in U.S. District Court in St. Louis. Lupo claims the company cut her hours until she was forced to quit.

Her former manager referred a reporter to the corporate office. A Hooters spokesman said the company could not comment on pending litigation. In court filings Friday, it denied Lupo's accusations. Hooters' defense said the suit should be dismissed and that she should be required to arbitrate her claim, among other arguments.

Hooters has seen lawsuits from aggrieved employees in the past. It is a challenging area of the law, balancing worker rights against a business that relies heavily on the appearance of employees.

Marcia McCormick, an associate professor of law at St. Louis University, said Hooters is in a business category some call “breastaurants.” She said the company has argued in past cases that, “We're not just selling wings or food” but, “We're selling sexuality. We're selling the flirting.”

She said it is tough to measure the success of that argument. “Every case I know about has generally settled, so it hasn't been well-tested by the courts.”

The Americans with Disabilities Act bans discrimination on the basis of a disability. That can be defined to be an actual physical or mental impairment, a history of having an impairment or even the perception of one because of someone's appearance.

Justine Lisser, a lawyer with the U.S. Equal Employment Opportunity Commission, in Washington, cannot comment on a specific case but said someone with a scar from brain surgery could be covered by all three of those. Lisser said a discrimination defendant cannot claim “customer preference” if the plaintiff is able to perform the “essential functions” of the job.

McCormick suggested that the “selling sex” argument is “a good try because it kind of walks a fine line between customer preference and ‘this is the essence of our business.’”

She said she was not aware of any “breastaurant” suits in a disability context, which may pose different legal questions. She also said that Lupo's case may be complicated by the temporary nature of her post-surgery appearance.

Lupo started at Hooters in 2005.

Last June 28, her doctor found a problem. Two days later, surgeons removed a section of her skull to access and remove a large, noncancerous mass.

She was working her way through nursing school at the time, said her lawyer, Larry Bagsby.

Bagsby said her treatment by Hooters left her “humiliated” and unemployed, but that the surgery caused no long-term effect. She is now working as a registered nurse, he said. He would not make her available for an interview.

Her lawsuit, first filed in February in St. Charles County Circuit Court, alleges that her manager, Brent Holmberg, visited her in the hospital and assured her that she could return as soon as she was able. He also said that she could wear a “chemo cap” or jewelry to distract attention from the scar and short hair, which had been cut to one-quarter of an inch for the operation.

But the regional manager, Joe Ozment, apparently disagreed, and told Lupo that she would have to wear a wig, the suit says.

Lupo returned to work on July 21 without a wig. After Holmberg insisted she wear one, the suit says, she borrowed one. But the healing scar made continuing to use it impossible, Bagsby said. It was uncomfortable and interfered with healing, he said.

Lupo's hours were cut until she was forced to quit, the suit claims.

The suit, which was moved to federal court last week at Hooters' request, says that the restaurant violated Missouri's Human Rights Act by discriminating against someone with both an actual and perceived disability. It also claims a violation of the Missouri Merchandising Practices Act, alleging that Hooters regularly uses a reduction in hours to force out employees. Lupo seeks unspecified financial damages.

© 2013 the St. Louis Post-Dispatch, www.stltoday.com. Distributed by MCT Information Services.

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