Weight in the Workplace--Is it a Reason to Sue?
June 14, 2004
 
June 14, 2004

URBANA--In a sport in which supersized players are the norm, overweight referees are not looked upon with as much favor. In the early 1990s, in fact, a Big Ten football official sued the conference after he was discharged for being over the 270-pound standard. (It also didn't help that he was ranked close to the bottom among Big Ten officials.)

The plaintiff brought suit against the Big Ten under the Americans with Disabilities Act, claiming that "he was discharged due to his perceived disability of obesity."

But when the smoke cleared, the Big Ten had won the case.

Lawsuits over weight include everything from claims that McDonald's "made me obese" to highly publicized battles against airlines who charge overweight customers for two seats. Weight discrimination in the workplace is also a source of contention, but it is unusual for plaintiffs to win discrimination suits based on obesity. That's because federal employment discrimination laws do not include weight as a protected class, said Shannon Moritz, director of legal writing with the University of Illinois College of Law.

In many cases, the courts simply do not view obesity as a disability, she noted. What's more, some jobs are allowed to include weight and height requirements where health and safety issues arise--positions such as police officers and firefighters.

But even in jobs where weight standards are not critical, there is considerable evidence that obese people face larger hurdles than their slimmer counterparts.

As Moritz put it, "There are no areas of employment where people are free from discrimination on the basis of obesity--everything from the initial hiring to whether they will be promoted or how their employees treat them in the workplace."

As evidence, the American Obesity Association cites a research review by Mark Roehling, a professor in the Department of Management in Western Michigan University. Roehling reviewed 29 research studies of employment discrimination and concluded, "Overall, the evidence of consistent, significant discrimination against overweight employees is sobering."

For example, two studies in this review found that mildly obese white women received 5.9 percent lower wages than standard-weight women, while morbidly obese white women received wages that were 24.1 percent lower.

"Obesity is the last bastion of socially acceptable discrimination," said Richard L. Atkinson, president of the American Obesity Association. "If you have a position of authority and you make a disparaging remark about African Americans or Hispanics, you will probably lose your position. But people slam obese people all of the time and nobody thinks a thing of it."

However, being discriminated against is one thing. Proving it in court is another.

According to Moritz, you first would have to prove that your obesity is a disability, which is not simple to do. Second, you would have to prove that you're qualified for the job; and third, you would have to show that you were not given the job specifically because of your disability.

However, cases have been won, most notably in the airline industry, which have historically attracted litigation over weight standards. The litigation goes back to the 1960s, when all airline attendants were women and they were required to meet stringent appearance requirements.

The airlines' argument in those days, Moritz said, was that they needed women to fill those roles because their service goes beyond just getting people from Point A to Point B; the male business travelers wanted an atmosphere where women made them feel more comfortable.

The female-only standard in airlines is long gone, but battles still rage over weight standards for flight attendants. In a recent case, for example, female flight attendants brought a class-action suit, claiming that the male weight standards allowed for large-bodied frames but the more stringent standards for females required women to have medium body frames or smaller.

The flight attendants were successful through Title VII of the Civil Rights Act of 1964.

According to Moritz, many legal scholars believe that the most effective legal means to combat weight discrimination in employment is by amending state statutes. At this time, however, Michigan is the only state that specifically prohibits weight discrimination in employment--although some state and local statutes deal with "appearance discrimination" in general.

"Where the average person can visibly see that someone is different, there is always more intense discrimination," Atkinson pointed out. "So I think that unfortunately we have not progressed as a worldwide civilization very far. We're still beating up on people who are different than us."

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