By Gerald L. Maatman Jr. and Howard M. Wexler

In case wrought with discovery battles – as previously discussed here – Judge Paul D. Borman of the U.S. District Court for the Eastern District of Michigan denied Weight Watchers’ motion for summary judgment in EEOC v. The WW Group, Inc., d/b/a Weight Watchers, Case No 12-CV-11124, 2013 U.S. Dist. LEXIS 169134 (E.D. Mich. Dec. 2, 2013). The case is a window into the Commission’s emphasis on pregnancy discrimination issues.

As discussed in our previous blog posting, this case concerns Weight Watchers’ policy of refusing to hire individuals (who are required to be Weight Watchers Lifetime members) who are not at their goal weight. In seeking dismissal, Weight Watchers argued that even though there was “direct evidence” of pregnancy discrimination, the individual employee who applied for a job was not qualified based on her being above goal weight. The Court did not accept this argument, finding that a question of fact exists as to “whether the objective qualification requirement that an applicant be at her 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.” Id. at 18.


Wendy Lamond-Broughton (the Charging Party) was a Weight Watchers Lifetime member who wished to apply for a position as a group leader. Id. at 3. At the time she expressed an interest in applying for a position she was pregnant. Id. Prior to interviewing for the position, Broughton spoke with a Weight Watchers manager who the EEOC alleges told her that it was not worth coming to an upcoming interview session because Weight Watchers did not hire pregnant women, as her pregnancy would cause her to be over her goal weight. Id. at 4-5. The manager admitted that she told Broughton that she must be at goal weight to attend the interview session, even if the reason for her weight gain was her pregnancy. Id. at 5.

For purposes of its summary judgment motion, Weight Watchers conceded that the manager’s statement to Broughton constituted “direct evidence of discrimination,” and thus it had the burden to prove by a preponderance of the evidence that it would have made the same decision towards Broughton absent the impermissible motive (here, the alleged pregnancy discrimination). Id. at 13-14. Weight Watchers argued that it satisfied this burden since Broughton was not objectively qualified for the job as she failed to meet the goal weight policy and because it 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. Id. at 14-15.

The Court’s Decision

Judge Borman denied Weight Watchers’ motion finding that, “there is at a minimum a question of fact regarding whether the goal weight required, as applied to Broughton, was related to her ability to perform the job.” Id. at 15. Not surprisingly, Judge Borman focused on the fact that Weight Watchers has a separate policy for current staff members (as compared to applicants like Broughton) that allows them to remain active employees even if they go above their goal weight because of pregnancy. Id. As such, Judge Borman held that because Weight Watchers deems current employees who become pregnant and go above their goal weight as “qualified,” 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.” Id. at 18. Given that “a reasonable juror could conclude that [Broughton’s] pregnancy weight gain was entirely unrelated to her ability to be an effective group leader or receptionist” as well as Weight Watchers’ “own concession that pregnant group leaders can effectively communicate in their positions without destroying the credibility of the WW program,” a question of fact existed rendering summary judgment inappropriate. Id.

In trying to stave of the denial of its motion, Weight Watchers analogized its argument with a situation involving an African-American pilot who was denied a position because of his race, but nonetheless failed to possess the required pilot license so could not have been hired for the job even without the discriminatory motive. Id. at 19. Judge Borman rejected this analogy as “inapt,” since unlike the pilot hypothetical he found there to be a genuine issue of material fact regarding the relevant of Weight Watcher’s “objective” qualification given that Weight Watchers dispenses with this requirement for current employees as compared to the necessity of a license for a pilot. Id.

Implications For Employers

Given Weight Watchers’ “two tiered” policy that deems job applicants unfit for hire based on the concomitant weight gain associated with pregnancy as compared to active employees who are allowed to remain on-the-job regardless of their pregnancy-related weight gain, Judge Borman’s decision is not surprising. However, employers would be wise to take note of the scrutiny Judge Borman gave to Weight Watchers’ purported “objective” criteria and his refusal to simply take Weight Watchers at its word that its policy is “necessary to promote the success of the WW weight loss and control principles and to support the credibility of the program.” Id. at 7. Employers seeking safe harbor behind an “objective” policy must be prepared to defend the policy and explain the business necessity behind the policy – which Judge Borman held Weight Watchers wholly failed to accomplish in its motion. 

Readers can also find this post on our Workplace Class Action blog here.