Weight-Based Discrimination: The State of the Law and Why it Should be Rethought

Randon Herrera

Randon Herrera is a student at Harvard Law School.

As it currently stands, Michigan is the only state in the union to explicitly prohibit employment discrimination on the basis of weight. That may change in the coming months, as a bill was recently filed in Massachusetts which seeks to ban weight-based employment discrimination. It is still too early to assess the likelihood of that bill succeeding, but this would not be the first time a law seeking to prohibit weight-based discrimination failed in MA. Other than a few municipalities, such as San Francisco, there are no other concrete laws protecting against weight-based discrimination in the United States.

This is a problem that needs to be addressed. A study of more than 2,800 Americans found that 60% of them experienced some kind of weight-based discrimination in the workplace. Weight discrimination occurs all throughout the employment process. It can lead to less pay, being refused a job, being terminated, or just generally poor treatment by peers and superiors.

Take, for example, Corey Dickson, who recently filed an employment discrimination claim in New Jersey state court. Corey, who weighed over 500 lbs., was allegedly terminated from his position as a bus driver because of his weight. After a medical examiner raised questions about his mobility, his employer allegedly removed him from the busing schedule and would not accommodate for Corey’s circumstance. Corey was also repeatedly teased for his weight by coworkers and superiors, being called “fat” and “as big as a bus,” among other things. Despite this treatment, the Superior Court of New Jersey dismissed his claim, citing the fact that weight was not a protected class.

Anyone can be the target of weight-based employment discrimination but, as can be expected, certain groups are disproportionately affected. Women, for instance, are particularly affected as overweight women earn significantly less than women of “average” weight. In fact, women’s pay tends to decrease as their weight increases, a trend not shared by men.

Without restrictions placed on weight-based discrimination, it is possible for employers to use weight as a proxy to discriminate against protected classes of groups. After all, weight tracks other characteristics, such as class, race, and sex. Being impoverished, African American, Native American, Hispanic, or female are all considered risk factors for obesity.

One current avenue for challenging weight-based employment discrimination is thus through a disparate impact claim. For a case where someone belongs to a protected class, if one can establish that a weight-based employment policy disproportionately impacts members of their class, they may have a valid disparate impact claim. For example, if an employer instituted a weight limit, terminating employees above a certain weight, then women and people of color would be more likely to be affected. These individuals could seek to mount a Title VII disparate impact claim. However, this vehicle of combatting weight discrimination is only available to someone who is a member of a protected class and only where a disparate impact can in fact be shown.

Another possible legal vehicle is an ADA claim. The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” The EEOC, in turn, defines impairment as: “(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as [enumerated list]; or (2) [a]ny mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” Under subsection (1) of the EEOC’s definition, only obesity resulting from a “physiological disorder” would be protected under the ADA. While the EEOC has suggested that extreme deviation from “normal” weight should be considered a disability regardless of any underlying physiological disorder, courts have not adopted this interpretation.

The most comprehensive way to address the problem is through direct legislation. Michigan, still the only state to designate weight as a protected attribute, provides a good framework. Among the usual classes of race, religion, sex, etc., Michigan’s Elliott-Larsen Civil Rights Act also includes weight as a protected attribute. Consequently, it is illegal for employers to discriminate on the basis of weight. Notably, an employer can be exempt from the prohibition against weight-based discrimination provided they apply for an exemption and make a showing of “a bona fide occupational qualification reasonably necessary to the normal operation of the business.”

Michigan’s legislation protects against weight-based discrimination where Title VII and the ADA would not. For instance, in Lamoria v. Health Care & Retirement Corp, the Michigan Court of Appeals found evidence sufficient to demonstrate a claim of weight-based discrimination where a moderately over-weight nurse was fired after she overheard her supervisor announce an intent to terminate employees who she believed to be overweight. The court indicated that so long as weight was a “determining factor” in the termination, a claim of weight-based discrimination could succeed—a standard applied by later Michigan courts. A standard like this could provide protection for overweight individuals regardless of disability or whether an employment policy has a disparate impact on a protected class.

States should consider adopting broad weight-based protection such as Michigan’s Civil Rights Act. That is not to suggest that such legislation would completely eliminate weight-based discrimination. But despite its imperfections, Michigan’s Civil Rights Act provides protection where federal law does not, and the rest of the union needs to catch up.

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