Equal Employment Opportunity Commission v. The WW Group, Inc.
Filing
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OPINION AND ORDER denying 31 Plaintiff's Amended Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
Case No. 12-11124
Paul D. Borman
United States District Judge
v.
Mark A. Randon
United States Magistrate Judge
THE WW GROUP, INC., d/b/a
Weight Watchers,
Defendant.
_____________________________/
OPINION AND ORDER DENYING DEFENDANT’S AMENDED
MOTION FOR SUMMARY JUDGMENT (ECF NO. 31)
This matter is before the Court on Defendant The WW Group, Inc. d/b/a Weight Watchers’s
Amended Motion for Summary Judgment. (ECF No. 31.) Plaintiff filed a response (ECF No. 33)
and Defendant filed a reply (ECF No. 34). The Court held a hearing on August 14, 2013. For the
reasons that follow, the Court DENIES Defendant’s motion.
INTRODUCTION
The Equal Employment Opportunity Commission (“EEOC”) has filed this claim of
pregnancy discrimination against Defendant The WW Group, Inc. (“WW”) claiming that WW
discriminated against its Charging Party, Wendy Lamond-Broughton (“Broughton”), on the basis
of her sex by refusing to hire her as a WW group leader because she was pregnant. WW responds
that Broughton was not qualified for employment with WW because she was not at her goal weight
when she sought to apply. WW claims to have a goal weight policy that requires anyone applying
for a position as a group leader or receptionist (positions in which Broughton expressed an interest)
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to be at goal weight when they apply. WW also has a separate staff goal weight policy for existing
staff, not applicable to Broughton as prospective staff, that includes certain exceptions for pregnant
and nursing women who exceed their goal weight during and after pregnancy. It is undisputed that
Broughton was pregnant and was not at her goal weight when she expressed an interest in applying
for employment with WW.
The EEOC does not challenge the WW applicant goal weight policy, nor does it claim that
the policy adversely affects pregnant women as a group (this is not a disparate impact claim). The
EEOC argues only that with respect to this claimant, the WW violated Title VII, and specifically the
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“the PDA”), by informing Broughton that she
need not bother interviewing for a position as a group leader because WW did not hire pregnant
women. For purposes of summary judgment, WW concedes that these discriminatory remarks were
made to Broughton and they therefore assume arguendo for purposes of their motion that the EEOC
has produced direct evidence of pregnancy discrimination, i.e. that Broughton was informed by a
WW employee that WW does not hire pregnant women and that she therefore need not bother to
apply.
The grounds for WW’s motion are very narrow and relate solely to Broughton’s
qualifications to perform the job of a group leader or receptionist. WW argues that despite direct
evidence that Broughton was refused an opportunity to interview for a position because she was
pregnant, the EEOC cannot succeed on its Title VII claim because it is undisputed that Broughton
was not at goal weight when she sought employment, that she was therefore unqualified for the
position and that there is no genuine issue of material fact that WW would not have hired Broughton
even in the absence of any discriminatory motive.
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I.
BACKGROUND
Broughton was a Lifetime Member of WW and thus eligible to apply for employment with
WW. (Def.’s Mot. Ex. 4, Invitation to Lifetime Membership.) A WW member becomes a “Lifetime
Member,” and thus eligible for employment and other privileges, by maintaining a “goal weight”
for six consecutive weeks. Id. A member’s “goal weight” is a specific weight chosen by the
member as his or her personal goal weight and must fall within a set “goal weight range” that is
determined by body mass index (BMI) guidelines based upon an individual’s height and age.
(Def.’s Mot. Ex. 3, WW Position Statement to the EEOC, Ex. 1, Weight Watchers Weight Ranges
for Adults; Def.’s Mot., ECF No. 31-22, March 26, 2013 Deposition of Robin Bingham 28.) A WW
member may change his or her goal weight as long as the chosen weight falls within the goal weight
range for their height and age. (Bingham Dep. 34.) The member must submit paperwork and
receive approval before making an official change to their chosen goal weight. (Id.) WW claims
that it requires all applicants for employment to be at their personal goal weight in order to be
considered for employment, although several WW documents indicate that an applicant must be
within “goal range” to apply for employment. (Pl.’s Resp. at 4; Ex. 9, Bingham Dep. 30, 46, 48;
Def.’s Mot. Ex. 4, WW Invitation for Employment; Def.’s Mot. Ex. 7, Employment Opportunity
Card.)
Broughton had been a member of WW for several years, and attended WW meetings in
various cities where she had lived. (Pl.’s Mot. Ex. 4, June 3, 2013 Affidavit of Wendy LamondBroughton ¶¶ 3-6.) At 5'9" tall, the upper end of Broughton’s WW BMI goal weight range was 169.
(Id. ¶¶ 2, 23.) Broughton was very successful in dropping weight on the WW program and in
maintaining her goal weight, becoming a Lifetime Member in July, 2005, after having adequately
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maintained her goal weight of 154. (Id. ¶ 7.) In August, 2008, Broughton gave birth to her first
child, having gained 30 pounds in the course of the pregnancy. Broughton was able to drop that
weight and return to her new goal weight of 164 (still within her goal weight range) by December,
2008. (Id. ¶¶ 9-11.) In May, 2009, Broughton became pregnant with her second child and at that
time weighed in at 154.6 pounds, 9.4 pounds below her goal weight. (Id. ¶¶ 13-14.) On July 23,
2009, four months into her pregnancy, Broughton weighed in at 162 pounds and stopped attending
WW meetings because of WW’s policy against allowing pregnant members to continue to
participate in the WW weight loss program. (Id. ¶ 15.)
In March, 2009, before becoming pregnant with her second child, Broughton, as a Lifetime
Member interested in employment with WW, submitted an Employment Opportunity Reply Card,
expressing her interest in becoming a WW group leader or receptionist. (Id. ¶¶ 7, 12; Def.’s Mot.
Ex. 7, Broughton’s Employment Opportunity Reply Card.) Broughton did not receive an immediate
response to her employment opportunity inquiry. (Broughton Aff. ¶ 14.)
On September 14, 2009, Broughton received a call from Carolyn Bough, the Detroit Area
Manager for WW, informing Broughton that WW had received her Employment Opportunity Reply
Card and inviting her to attend an information session for interested individuals the next morning
at 9:30 a.m. (Broughton Aff. ¶ 17.) According to Broughton, she called Bough back later that
morning and left a message informing Bough that she was pregnant but was still interested in a job
with WW. (Id.) According to Broughton, Bough returned Broughton’s call later that afternoon and
informed Broughton that it was not worth coming to the interview session because WW did not hire
pregnant women. (Id. ¶ 18.) According to Broughton, Bough told her that by the time WW finished
training her, Broughton would be off work to have her baby. (Id.) During this conversation,
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according to Broughton, Bough did not ask nor did Broughton offer any information regarding her
goal weight, her goal weight range or her weight at the time. (Id. ¶ 19.) Broughton and Bough
spoke again later that evening and Bough again informed Broughton that she would not be hired
because she was pregnant and because her pregnancy caused her to be over her BMI weight range.
According, to Broughton, Broughton did not offer information regarding her height, weight, BMI
range or her present weight during that conversation. (Id. ¶ 20.) Bough explained to Broughton that
a person who is already working for WW when they become pregnant can remain employed but that
no one can be hired while pregnant. (Id. ¶ 21.) According to Broughton, Bough was not interested
in Broughton’s success in the WW program or the fact that Broughton had always maintained her
goal weight prior to becoming pregnant and in fact was at her lowest weight ever, 154.6, before
becoming pregnant with this second child. (Id. ¶ 21.)
Bough’s recollection of her communications with Broughton are quite different. According
to Bough, Broughton never left a voicemail message for Bough and therefore Bough’s testimony
is that Broughton never mentioned in a phone message that she was pregnant. According to Bough,
when she first spoke with Broughton on the phone, she first asked Broughton what her current and
goal weights were before learning that Broughton was pregnant. According to Bough, she then
informed Broughton that she needed to be at goal weight to attend the interview session and apply
for a position. Bough understood from Broughton that her weight gain was due to her pregnancy
but explained to Broughton that nonetheless she must be at goal weight to attend the information
session. (Pl.’s Resp. Ex. 7, Bough Dep. 25-29.)
Given her long term success on the WW program, Broughton was upset at being told that
her pregnancy prevented her from being considered for employment with WW, and asked for the
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name of a person she could contact in WW’s Human Resources Department. ( Broughton Aff. ¶ 22.)
Broughton was trying to understand why Bough said she was being rejected simply because she was
pregnant. She explained to Bough that she weighed 169 pounds, a weight that was still within her
goal range, even though she was five months pregnant. (Id. ¶¶ 22, 23.) Bough told Broughton that
she would check with Human Resources and get back to Broughton the next morning. (Id. ¶ 24.)
According to Broughton, she received no further communication from Bough until late the next day,
after the information session had occurred, informing Broughton that Bough would let her know
when WW was having another information session that Broughton could attend. (Id. ¶ 25.)
Broughton had no further conversations with Bough. (Id.) Broughton admits that at the time
she spoke with Bough, she was 5 pounds over her goal weight of 164, but submits that she was still
within her goal weight range and that the sole reason for her weight being over her personal goal
weight was that she was in her fifth month of pregnancy. (Id. ¶ 25.) According to Broughton, had
she not been pregnant, she would have continued her success with the WW program and would have
maintained her goal weight. (Id.) Broughton never attended an information session and did not
apply for employment.
Although WW asserts that Broughton never actually applied for employment, they appear
to accept arguendo that the discriminatory conduct that prevented her from submitting an application
can constitute actionable conduct under Title VII. See, e.g. Ferdinand-Davenport v. Children’s
Guild, 742 F. Supp. 2d 772, 780 (D. Md. 2010). “The McDonnell Douglas framework only
demands that a plaintiff seek to apply, rather than actually apply, to an open position. . . . On the
facts pled by Davenport, it is plausible that she applied or sought to apply for an open position.” Id.
So too here.
Bough did approach Amy Brozgold in Human Resources after speaking with
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Broughton and asked Brozgold how to handle an inquiry from a Lifetime Member who wished to
attend an information session but was over goal weight due to her pregnancy. (Def.’s Mot., ECF
No. 31-24, March 26, 2013 Deposition of Amy Brozgold 54-55.) Brozgold instructed Bough to
inform Broughton that she could absolutely attend an information session regardless of her
pregnancy status. (Id. at 55.) Ms. Brozgold explained that although Broughton was welcome, as
a Lifetime Member, to attend the information session, she would have to be at goal weight to be
hired, regardless of the fact that she was pregnant. (Id. at 45-47.) WW has no policy to address one
way or the other the situation of an applicant who is above goal weight due to pregnancy. (Id. at 47.)
In fact, unlike the WW Staff Goal Weight Policy covering those already employed with WW, the
applicant goal weight policy is unwritten.
WW’s Staff Goal Weight Policy applies to all WW staff members who have contact with the
public and requires such staff to maintain their weight “at goal” throughout their employment:
Affected staff members are required to maintain their weight “at goal.” At goal is
defined as within 5 pounds of the established Lifetime Member goal weight not to
exceed the maximum recommended weight for all adults at that height. This specific
weight must be within Goal Range established by Weight Watchers International as
appropriate for the staff member’s height and age. Currently this range is based on
the Body Mass Index (BMI) for healthy weight developed and based on scientific
and medical data relating to obesity and risk of disease associated with being
overweight.
(Def.’s Mot. Ex. 1, Staff Goal Weight Policy, Section 2.) If a staff member who is required to
comply with the Staff Goal Weight Policy weighs in above goal, the staff member receives
counseling and a limited opportunity to move back to goal weight before being placed on an unpaid
leave of absence and ultimately discharged for failure to maintain goal weight. (Id. Section 5.)
WW justifies its Staff Goal Weight Policy as being necessary to promote the success of the
WW weight loss and control principles and to support the credibility of the program:
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[W]e must also recognize that to our members, the Weight Watchers staff are the
embodiment of the weight loss and control principles that the members are there to
learn and follow. In other words, we are role models for our members and are
examples that the Weight Watchers program works!
An overweight staff person, however charismatic and likable, can raise questions in
members minds as to the credibility of the Weight Watchers weight reduction
program. To this end, the following Staff Goal Weight Policy and Procedures have
been established for all staff who have contact with members in the meeting room
and general public. This policy applies across the board to all applicable staff, with
no exceptions, in order to promote fair and equal treatment.
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We have an obligation to our members and the public to follow the Weight Watcher
program because we are role models. If we are to promote this program, we must
believe in it and follow it ourselves.
The general public have the right to question our credibility as a company when our
employees are obviously not following the program we claim is an effective method
of weight management.
Therefore, there are legal, moral and ethical reasons to have a staff goal weight
policy.
Def.’s Mot. Ex. 1, Staff Goal Weight Policy Section 1, 3.
Notably, a special exception to the Staff Goal Weight Policy is made for pregnant and
nursing staff members, accommodating their pregnancy related and nursing weight gain:
Pregnant staff will be allowed to work in their meetings until their doctor
recommends they stop working before delivery. However, they should maintain
their weight within their doctor’s recommended weight range in order to stay in their
meetings. While on leave of absence, staff members should continue to weigh
monthly. Nursing staff members should stay within their doctor’s recommended
weight range for nursing mothers.
Before being allowed back into meetings, staff members must weigh in with their
Manager. A goal weight conference will be held to establish a specific plan for
getting back to goal after pregnancy/nursing is complete. At that time, the policy,
as stated in Section 5, will become effective.
Def.’s Mot. Ex. 1, Staff Goal Weight Policy, Section 6.
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To reiterate: WW’s “applicant goal weight policy,” unlike its “staff goal weight policy,” is
unwritten. The Employment Opportunity Reply Card that prospective applicants fill out states that
“prospective staff must have a body weight that is within the Weight Watchers goal range.” (Def.’s
Mot. Ex. 7, Employment Opportunity Reply Card.) According to the testimony of the WW
witnesses, in practice an applicant must be at “goal weight,” not “within goal range” and applicants
are told verbally that they must be at or below “goal weight” to be considered for employment:
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Okay. And does this staff goal weight policy apply to applicants?
No.
Is there a separate goal weight policy that is limited to applicants?
Verbally we tell them, yes, you have to be at your goal weight to work for us.
But is there a formal document entitled goal weight policy applicable to
applicants?
No.
Is there a formal document that’s intended to reflect a goal weight policy
that’s limited to applicants?
No.
You say that the staff goal weight policy doesn’t apply to applicants. What’s
the basis for your testimony in that regard?
Specifically, once somebody works for Weight Watchers, if they happen to
get into a little bit of trouble with their weight, we do everything we can to
help that person get that weight off again. And so it’s very – time consuming
and it’s very supportive and nurturing to help that person.
I guess what I’m wondering is what’s the basis for your testimony that this
policy cannot benefit applicants, I guess?
Well, it’s just not designed for applicants, and so it’s not just that it wouldn’t
be beneficial or beneficial [sic] it’s just not for them; it’s for the staff only.
Is there anything in writing in a company documents which clearly indicates
that this policy is simply not for applicants?
Are you asking me is it in writing somewhere that the staff goal weight
policies and procedure is not for applicants, is that phrase in writing?
Yes.
Not to my knowledge.
ECF No. 31-22, Def.’s Mot. Bingham Dep. 46-47.
At the time that Broughton received the phone call from Bough in response to her expression
of interest in employment with WW, the upper end of the WW goal weight range for Broughton’s
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height and age was 169, Broughton’s personal goal weight was 164 and her actual weight, according
to her affidavit, was 169, above her personal goal weight but still within her WW BMI goal range.1
II.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim,
or cross-claim is asserted may file a motion for summary judgment “at any time until 30 days after
the close of all discovery,” unless a different time is set by local rule or court order. Fed. R. Civ.
P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no
genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.
R. Civ. P. 56(a). “Of course, [the moving party] always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
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WW asserts that Broughton in fact weighed 172 pounds at the time she expressed an interest in
employment with WW, which put her both beyond her personal goal weight and outside of her BMI
goal range. As evidence of Broughton’s weight at the time, WW relies on an email that Broughton
drafted on April 5, 2010, in connection with the EEOC proceedings, in which she stated: “The
weight watchers healthy upper end of the range for my height is 169. With a goal
weight/maintenance weight of 164 . . . the weight of my baby alone put me over 172, thus over their
range.” (Def.’s Mot. Ex. 20, 4/5/2010 Email From Broughton to Lolita Davis at the EEOC.)
However, the date on which Broughton may have reached a weight of 172 is unclear from this email
and Broughton has testified in her Affidavit that she weighed 169 pounds (within her WW BMI
range) at the time she spoke with Bough about attending an information session.
Importantly, WW did not depose Broughton before filing its summary judgment motion to
ascertain the basis for this discrepancy. Viewing the facts in the light most favorable to the
Plaintiff, as the Court must on summary judgment, the Court must assume that Broughton’s weight
was 169, as set forth in her affidavit, on the date she was told by Ms. Bough not to bother attending
the information session due to her pregnancy.
Additionally, there is some dispute regarding Broughton’s height (she claims she is 5'9"
which would put her upper end weight at 169), WW infers she was 5'8" which would put her weight
of 169 above the upper end of her WW goal weight range of 164 (if Broughton were 5'8"). (Def.’s
Mot. Ex. 3, EEOC Position Statement, Ex. 1, Weight Watchers Weight Ranges For Adults.) Again,
this discrepancy was never addressed in discovery and, viewing the facts in the light most favorable
to the Plaintiff, the Court assumes that Broughton was 5'9" and that the upper end of her weight
range was 169.
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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).
A fact is “material” for purposes of a motion for summary judgment where proof of that fact
“would have [the] effect of establishing or refuting one of the essential elements of a cause of action
or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)
(quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material
fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Conversely,
where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material
fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this
evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the
non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). “‘The
central issue is whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.’” Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558
(6th Cir. 2005)).
If this burden is met by the moving party, the non-moving party’s failure to make a showing
that is “sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial,” will mandate the entry of summary judgment.
Celotex, 477 U.S. at 322-23. The non-moving party may not rest upon the mere allegations or
denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must
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set forth specific facts which demonstrate that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).
The rule requires the
non-moving party to introduce “evidence of evidentiary quality”
demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135,
145 (6th Cir. 1997); see Anderson, 477 U.S. at 252 (holding that the non-moving party must produce
more than a scintilla of evidence to survive summary judgment). “A genuine issue of material fact
exists if a reasonable juror could return a verdict for the nonmoving party.” Pucci v. Nineteenth
Dist. Ct., 628 F.3d 752, 759 (6th Cir. 2010).
“Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to
make [his] case with a showing of facts that can be established by evidence that will be admissible
at trial. . . . In fact, ‘[t]he failure to present any evidence to counter a well-supported motion for
summary judgment alone is grounds for granting the motion.’ Rule 56(e) identifies affidavits,
depositions, and answers to interrogatories as appropriate items that may be used to support or
oppose summary judgment.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting
Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)).
“In reviewing a summary judgment motion, credibility judgments and weighing of the
evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the
non-moving party.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus, the facts and any inferences that
can be drawn from those facts [ ] must be viewed in the light most favorable to the non-moving
party.” Id. (alteration in original) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) and Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)).
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III.
ANALYSIS
The EEOC brings its claim under Title VII, 42 U.S.C. § 2000e-2(a)(1), which makes it
unlawful for an employer “to fail or refuse to hire . . . any individual, or otherwise discriminate
against any individual . . . because of such individual’s . . . sex.”
Under the Pregnancy
Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), the term “because of sex” includes “because
of or on the basis of pregnancy, childbirth or related medical conditions.” The EEOC guidelines
interpreting the PDA, which are accorded a high degree of deference under Griggs v. Duke Power,
401 U.S. 424, 433-34 (1971), provide in part:
The basic principle of the Act is that women affected by pregnancy and related
conditions must be treated the same as other applicants and employees on the basis
of their ability or inability to work. A woman is therefore protected against such
practices as being fired, or refused a job or promotion merely because she is pregnant
....
29 C.F.R. App. § 1604 (1986). See Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1213 (6th Cir.
1996) (“The EEOC guidelines interpreting [the PDA], [] are entitled to a high degree of deference
under Griggs v. Duke Power, 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971)”).
“The PDA was enacted for a second and broader purpose as well, namely, to prevent the differential
treatment of women in all aspects of employment based on the condition of pregnancy.” Carney v.
Martin Luther Home, Inc., 824 F.2d 643, 646 (8th Cir. 1987). “In using the broad phrase ‘women
affected by pregnancy, childbirth and related medical conditions,’ the bill makes clear that its
protection extends to the whole range of matters concerning the child-bearing process.” Id. at 64748 (quoting H.R. Rep. No. 95-948 at 5, reprinted in Legislative History at 151, U.S. Code Cong. &
Admin. News 1978, p. 4753).
WW concedes, for purposes of summary judgment, that Bough’s alleged remarks to
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Broughton informing her that her pregnancy weight gain put her outside her BMI range and
therefore ineligible for employment, constitute direct evidence of discrimination. The parties agree
that once a plaintiff has produced direct evidence of discrimination, “the burden shifts to the
employer to prove by a preponderance of the evidence that it would have made the same decision
absent the impermissible motive.” Weigel v. Baptist Hosp. Of East Tenn., 302 F.3d 367, 382 (6th
Cir. 2002); See also Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921,
927 (6th Cir. 1999) (“Once there is credible direct evidence, the burden of persuasion shifts to the
defendant to show that it would have terminated the plaintiff’s employment had it not been
motivated by discrimination.”). WW argues that even assuming that Bough’s remarks were made
and constitute direct evidence of discrimination, WW is entitled to summary judgment because there
is no genuine issue of material fact (1) that Broughton was not objectively qualified for the job
because she failed to meet the goal weight policy for applicants and (2) that WW would not have
hired Broughton even in the absence of the alleged discriminatory motive because she was above
goal weight at the time she sought employment with WW.
WW’s summary judgment argument is quite narrow, limited to the contention that Broughton
was unqualified for a position as a group leader or receptionist because she was five pounds above
her goal weight at the time she sought employment. WW argues that even assuming arguendo direct
evidence of discrimination, the EEOC must still establish that Broughton was objectively qualified
for the job. WW argues that Broughton was not objectively qualified because she was admittedly
above goal weight, in violation of WW’s applicant goal weight policy, at the time she applied for
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employment.2 A qualification requirement, although objective, that is totally unrelated to job
performance is an insufficient basis on which to refuse to hire an individual. “At the prima facie
stage, a court should focus on a plaintiff’s objective qualifications to determine whether or not he
or she is qualified for the relevant job.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 57576 (6th Cir. 2003) (en banc) (emphasis in original).
In this case, there is at a minimum a question of fact regarding whether the goal weight
requirement, as applied to Broughton, was related to her ability to perform the job. WW concedes
that had Broughton been at or below goal weight even though pregnant, she would have been
eligible to be hired and would have been considered for a position, all other criteria such as lifetime
membership, etc. being met. (Brozgold Dep. 50-51.) If hired, she would then have been covered
by the staff goal weight policy governing pregnant staff, which would permit her to work as a group
leader or receptionist, despite exceeding her goal weight and goal range, as long as her doctor felt
it was medically appropriate. WW also concedes that an applicant could attempt to change her
personal goal weight to accommodate her pregnancy weight gain (as long as she remained within
her BMI range) and become eligible for employment even though her pregnancy will soon take her
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As discussed above, the applicant “goal weight policy” was unwritten. The WW witnesses,
however, testified uniformly to their understanding that applicants had to be “at goal weight” when
seeking to be hired. The Employment Opportunity Card, however, that Broughton signed in this
case expressing her interest in employment with WW, states that applicants must be “within goal
range” to be considered for employment. Moreover, the literature encouraging Lifetime Members
to apply for positions on the WW staff states that “at-goal” members are encouraged to apply and
defines “at-goal” as “a body weight within the Weight Watchers goal weight range.” (Def.’s Mot.
Ex. 4.) WW dismisses this “goal range” argument as a “red herring,” but clearly there is a factual
dispute as to the exact contours of the “unwritten” applicant goal weight policy. If the standard for
applicants is “goal range,” and if Broughton was within goal range at the time she would have
attended the interview session, she would have been objectively qualified for employment even
under WW’s own definition.
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above that goal weight after she is hired:
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So my question is, you know, based on your understanding of company
policy and procedure, is an applicant’s pregnancy taken into consideration
when determining whether or not she’s qualified for employment based on
goal weight?
No. It’s based on the number, based on her goal weight.
And the fact that she may be pregnant and her weight might be associated
with pregnancy is not taken into account.
Correct.
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Okay. Just to be clear, based on your understanding of the goal weight
requirements, if an applicant is pregnant but over goal weight and they apply
for employment, what would happen with that person’s application?
If they are over goal?
Yes.
They would not be considered for employment.
And what if the applicant is pregnant and over goal but within the goal
weight range for her height, what would happen with her application?
She would have the option at that point - because the pregnancy quite
frankly, is irrelevant. It’s all based on the number. So if she were to say, I
will change my goal weight and it’s still within my BMI, then I suppose we
would consider her.3
Okay. What would happen if an applicant is pregnant but at her goal weight
at the time she applies for employment?
As long as she’s at goal weight, we would be - that would be - of course, that
would be fine.
Okay. So she wouldn’t be rejected based on her goal weight?
If she’s at her goal weight, that’s what we’re going to look at.
Okay. And she would be eligible for employment, correct?
Correct.
And that’s provided other criteria are met such as regular attendance at
meetings and a good interview and things like that?
Correct.
So she would be eligible - a pregnant woman who is at goal at the time of
application would be eligible for employment, even though at a later point in
3
Assuming that the applicant goal weight policy required an applicant to be at “goal weight,” rather
than “within goal range,” there is a question of fact as to whether or not Broughton, if she had
chosen to do so, could have adjusted her personal goal weight to accommodate her pregnancy
weight gain, as Bingham suggested in her deposition, and been at goal weight for the interview
session. Because WW opted not to depose Broughton before filing their motion for summary
judgment, this and many other questions remain unanswered.
16
A:
Q:
A:
Q:
A:
time she’s going to gain weight based on her pregnancy?
As long as when she applies with us she is at her goal weight, that’s what I’m
going to look at. That’s the only thing I look at at that point with regard to
weight, is where she is. Is she at goal weight.
And if that were to happen, I mean, it would be inevitable that such a person
would gain weight during the course of pregnancy, right?
Correct. Of course.
*
*
*
In the event that person successfully completes training and there is a
vacancy, such person would be hired, right?
Yes. I was a pregnant leader. You know, we have it all the time.
Bingham Dep. 47-50, 51-52.
This testimony demonstrates that when the applicant goal weight policy is applied to a WW
Lifetime Member like Broughton, whose above-goal weight at the time she applies is arguably
attributable solely to her pregnancy weight gain, the goal weight policy is entirely unrelated to the
“legal, moral and ethical reasons” espoused by WW as the basis for requiring applicants to be at goal
weight. According to WW, an individual who is over goal weight because they have failed or been
unable to adhere to the WW program is an unsuitable candidate for employment because, “however
charismatic and likable,” their inability to maintain goal weight “can raise questions in members
minds as to the credibility of the Weight Watchers weight reduction program.” (Def.’s Mot. Ex. 1,
Staff Goal Weight Policy.) WW repeated this justification for the applicant goal weight policy at
oral argument on this motion, WW counsel stating that WW is in the weight loss industry and cannot
have people who are overweight as their spokespersons. But, as Ms. Bingham testified, pregnant
group leaders are permitted to continue working and it “happens all the time.” Because a group
leader who is able to maintain goal weight but gains healthy weight due to pregnancy has no
negative impact on the credibility of the WW program, such a person is not inherently an example
of a failure of the program’s goals or methods at all. Consequently, when applied to a pregnant
17
applicant whose over goal weight is wholly pregnancy related, a question of fact exists as to whether
the applicant goal weight policy has a legitimate connection to the applicant’s ability to perform the
job.
WW makes much of the fact that the EEOC concedes that it is not challenging the applicant
goal weight policy in this case. But they need not do so to challenge the application of that policy
to Broughton on the facts of this case. A question of fact exists as to whether the objective
qualification requirement that an applicant be at goal weight when applying is relevant to job
performance in the case of an applicant whose above goal weight is attributable solely to her
pregnancy. The policy may well be a valid objective qualification with regard to a different
claimant, for example one whose above goal weight could not be entirely attributed to pregnancy
and who therefore would present a credibility issue as a member of the staff. But this Court is not
addressing the policy as a whole, or its potential application to other claimants. With respect to
Broughton, however, as to whom one could reasonably conclude that her above goal weight was
entirely related to her pregnancy, a reasonable juror could conclude that her pregnancy weight gain
was entirely unrelated to her ability to be an effective group leader or receptionist, given WW’s own
concession that pregnant group leaders can effectively continue in their positions without destroying
the credibility of the WW program.
WW argues that even assuming direct evidence of discrimination, it has produced sufficient
evidence to enable the Court to determine as a matter of law that it would not have hired Broughton
even absent the discriminatory animus because the undisputed evidence demonstrates that WW has
never made an exception to the applicant goal weight policy and has never hired an individual who
was above goal weight. To make its point, WW analogizes to the situation of an African American
18
who applies for a job as an airline pilot but is denied employment because of his race. Such an
individual would have no claim under Title VII, WW argues, if he lacked a pilot’s license, an
objective qualification for the job of a pilot, because he could not have been hired for the job
regardless of the discriminatory motive for the failure to hire. This analogy is inapt where there is
a genuine issue of material fact regarding the relevance of the alleged objective qualification to a
particular applicant’s ability to perform the job. In the case of the pilot, the license is indispensable.
In the case of Broughton, her above-goal weight due to pregnancy, perhaps not so. Moreover, as
discussed further infra, the latter is arguably protected by Title VII and the PDA, the pilot’s license
is a separate and independent non-protected basis for refusing to hire the pilot.
More importantly, however, there is no evidence to support WW’s contention that had
Broughton not been pregnant (and therefore over goal weight) they would not have hired her. Had
she not been pregnant, presumably given her history with WW and her weight at the time she
became pregnant, she would have been at or below goal weight and eligible for hire. WW has not
adequately explained in Broughton’s case how they can analytically separate Broughton’s pregnancy
from her weight gain for purposes of determining whether or not they would have hired her absent
the discriminatory motive. Broughton was told, viewing the facts in the light most favorable to her,
by Bough that her pregnancy related weight gain put her over her WW BMI range and therefore
ineligible for hire. According to Broughton, once learning that Broughton was pregnant, Bough did
not immediately inquire about Broughton’s actual or goal weights before telling her she need not
bother to interview because she was pregnant and overweight. Bough herself, according to
Broughton, did not distinguish between the pregnancy and the weight gain. Absent her pregnancy,
a rational trier of fact could conclude, there would have been no weight gain precluding her
19
employment with WW. There is no evidence establishing that, absent the above goal weight, they
would not have hired her. Therefore, WW has not established that, absent her pregnancy, they
would not have hired Broughton.
Even assuming that Broughton was not objectively qualified according to WW’s
interpretation of its applicant goal weight policy, and that WW would not have hired Broughton
notwithstanding an admitted discriminatory motive, this would not end the inquiry in this case.
WW’s decision to refuse to hire Broughton because her pregnancy put her over her goal weight must
still comport with the requirements of the PDA. WW has failed to adequately address the EEOC’s
argument that their applicant goal weight requirement cannot trump the provisions of the PDA. WW
states that it has fulfilled its obligations under the PDA by treating Broughton just like all other
applicants and that this is all the PDA requires. (Def.’s Reply 2.) But the PDA prohibits refusing
to hire someone because of the effects of their pregnancy:
The basic principle of the Act is that women affected by pregnancy and related
conditions must be treated the same as other applicants and employees on the basis
of their ability or inability to work. A woman is therefore protected against such
practices as being fired, or refused a job or promotion merely because she is pregnant
....
29 C.F.R. App. § 1604 (1986). On the facts of this case, a reasonable juror could conclude that
Broughton’s weight gain putting her above her goal weight was solely attributable to her pregnancy,
that this weight gain was totally unrelated to her ability or inability to perform the job (as evidenced
by the fact that WW permits pregnant group leaders to continue to conduct group meetings) and that
she was wrongly denied the right to apply for a position with WW. WW argues that the EEOC
cannot question WW’s business judgment in adopting an applicant goal weight policy that they
deem to be crucial to the credibility of their program. But application of the policy in the context
20
of this case, where WW’s own staff goal weight policy, as explained by Ms. Bingham, demonstrates
that pregnant women can be effective group leaders, creates a question of fact as to whether or not
a candidate for employment whose weight gain is solely attributable to her pregnancy impugns the
credibility of the WW program and as to whether she is, therefore, in fact unqualified for the
position.
At oral argument, counsel for WW submitted that if the Court were to consider this notion
that Broughton’s over goal weight was attributable solely to her pregnancy, the Court must also
consider whether WW could establish that the applicant goal weight policy as applied to pregnancy
weight gain was a bona fide occupational qualification (“BFOQ”).4
“The BFOQ defense
countenances gender-based discrimination ‘in those certain instances where . . . sex . . . is a bona
fide occupational qualification reasonably necessary to the normal operation of that particular
business or enterprise.’” Everson v. Mich. Dep’t of Corrections, 391 F.3d 737, 747-48 (6th Cir.
2004) (quoting 42 U.S.C. § 2000e-2(e) (2001)). “The burden is on an employer to establish a BFOQ
4
Counsel for WW claimed at oral argument to have been blind-sided by this argument that
Broughton’s weight gain was pregnancy related and therefore could only be used as a basis to
disqualify her from employment if proven to be job related. This ought not to have been a surprise
to WW. The EEOC’s response to WW’s summary judgment motion made the argument that
“Broughton was excluded from employment because of a pregnancy-related medical condition,” and
cited United Auto Workers v. Johnson Controls, Inc., 499 U.S. 187, 205 (1991), a seminal case
discussing the BFOQ defense, for the proposition that any decision to refuse to employ or hire a
pregnant woman must be related to the person’s ability to do the work. (ECF No. 33, Pl.’s Resp.
11.) Moreover, in its now-withdrawn motion for summary judgment, WW directly addressed the
BFOQ issue, offering the same justification there that it offers here, i.e. that the applicant goal
weight requirement relates to preserving the credibility of its program by ensuring that its public
spokespersons have a demonstrated ability to lose weight and maintain weight loss under the WW
program. (ECF No. 14, Motion for Summ. Judg. 9-10.) WW made the strategic decision to
withdraw that motion and to omit that argument from the instant motion and also chose not to
respond to the argument when raised in Plaintiff’s response to the instant motion. WW cannot
reasonably claim surprise.
21
defense.” Everson, 391 F.3d at 748. “‘[I]n order to qualify as a BFOQ, a job qualification must
relate to the essence, or to the central mission of the employer’s business.’” Id. at 749 (quoting
United Auto Workers v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991)). “‘The validity of a
BFOQ turns upon factual findings, preferably ones by a jury.’” Enlow v. Salem-Keizer Yellow Cab
Co., Inc., 389 F.3d 802, 807 (9th Cir. 2004) (citing EEOC v. Boeing Company, 843 F.2d 1213, 1216
(9th Cir. 1988)).
For the reasons discussed above, as applied to an applicant’s over goal weight that is solely
occasioned by pregnancy, genuine issues of material fact exist as to whether enforcement of the
applicant goal weight policy, when applied to a prospective staff member whose over goal weight
is solely attributable to her pregnancy, relates to the essence or mission of WW. See Carney, 824
F.2d at 648-49 (finding that employer failed to carry its burden of establishing a BFOQ defense
where plaintiff could continue to perform the requirements of her job despite the restrictions placed
on her directly arising from her pregnancy). WW admits (for purposes of its summary judgment
motion) that it refused to interview Broughton for a position because of her pregnancy. The fact that
it has a policy that it claims permits it to discriminate against her on the basis of her pregnancyrelated weight gain does not relieve WW of its obligation to comply with the PDA. WW has not
produced sufficient evidence to permit a finding that it has established a BFOQ defense as a matter
law.
IV.
CONCLUSION
The Court concludes, given WW’s concession of direct evidence of discrimination for
purposes of this motion, that genuine issues of material fact persist as to (1) whether the WW
applicant goal weight policy required prospective staff to be at their personal goal weight or within
22
their WW goal weight range and whether Broughton was within her WW goal weight range when
she sought employment; (2) whether Broughton was qualified for the position; (3) whether WW
would have refused to hire Broughton notwithstanding her pregnancy; and (4) whether the applicant
goal weight policy as applied to Broughton is a bona fide occupational qualification.
Accordingly, the Court DENIES WW’s Amended Motion for Summary Judgment. (ECF
No. 31.)
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated:
December 2, 2013
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on December 2, 2013.
s/Deborah Tofil
Case Manager
23
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