Bald Is Beautiful … Unless You’re a Hooters Waitress After Brain Surgery

Sandra Lupo took three weeks off from her job as a Hooters waitress for brain surgery. During her leave, her manager assured her that she would be able to return to work with a “chemo cap” or jewelry to distract customers from her buzz cut and large scar. Upon her return, however, Hooters changed course and told Lupo that she would have to wear a wig. When she could not comply because the wig irritated her scar, Hooters cut her hours until she was forced to quit. According to the St. Louis Post-Dispatch, she is now suing Hooters for disability discrimination.

Let’s first take care of the low hanging fruit. The insensitivity of Hooters’s reaction to this situation is easy to spot. Just because Hooters acted insensitively, however, does not mean that it acted illegally. Indeed, whether the wig requirement discriminated against Lupo is a tricky question.

The Americans with Disabilities Act protects three classes of individuals:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual.
2. Those regarded as having such an impairment.
3. Those with a record of such an impairment.

Actual Disability

Post-surgery, Lupo is going to have a difficult time claiming an actual disability. Even if her benign brain tumor was an ADA disability pre-surgery, after its removal she no longer had a current “physical or mental impairment that substantially limits one or more major life activities of such individual.” Therefore, as the 6th Circuit recently recognized in Blosser v. AK Steel Corp., a tumor that has been removed is not an actual disability.

“Regarded as” Disability

Because of the temporary nature of her baldness, Lupo is also going to have a difficult time claiming that Hooters “regarded her” as disabled. To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental impairment, and that the impairment was one with a duration of more than six months. Thus, even if Hooters perceived Lupo as impaired because of her post-surgery appearance, that appearance would dissipate in six months with the regrowth of her hair.

“Record of Disability”

Lupo’s best claim is going to be that Hooters discriminated against her because of a “record of” an impairment. “Record of” disability claims are intended to ensure that employees are not discriminated against because of a history of disability. According to one court, “The ‘record of’ definition was tailor-made for plaintiffs who … claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.”

Yet, Lupo’s claim under this provision of the ADA is not clean. As the Blosser court noted, when a brain tumor is temporary and resolved by surgery, and the employee is able to return to work without restriction, a “record of” disability claim fails. Lupo will have a hard time establishing this claim because of the short duration of her underlying medical condition, coupled with her return to work free of any residual medical issues. Also, if Lupo does not have a protected record of a disability, Hooters has no obligation to provide any reasonable accommodation.

While Hooters will take a beating in the press over its treatment of Lupo, it is not a slam-dunk that such mistreatment violates the ADA.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.