Is There Workplace Weight Bias, And Is It Against The Law?
Employment-law columnist Richard B. Cohen tackles this controversial subject.
Happy New Year to all of you “resolvers” who will absolutely, positively lose weight this year! Rare is the person who does not resolve on January 1st to finally stick to a diet or weight-loss plan (although I just saw some stat that this is the first year in many that this is not the most popular resolution – the most popular is “being a better person”). And good luck – from one who has spent a lifetime going up and down the BMI index!
Is there a bias in the workplace against people who are “overweight”? Is weight a protected class under the Civil Rights laws?
The answers are yes, for sure; and no (maybe). Let’s discuss.
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Is There Weight Bias In The Workplace?
Last time I checked, Michigan was the only state that prohibits weight discrimination in employment (as do a half-dozen or so municipalities). But make no mistake: surveys have shown that there sure is “weight bias” in the workplace — on a scale of overweight to severely obese, there is a 12 to 100 times greater likelihood of discrimination!
And guess what? Women suffer this more than men. What a surprise!
A study at Yale found that “overweight adults were 12 times more likely to report having experienced weight-based employment discrimination than thinner persons.” As one of the authors stated, “What’s safe to conclude is that weight discrimination occurs at every stage of the employment cycle from getting hired to getting fired. … [H]iring professionals are less likely to hire an overweight candidate as opposed to a thinner candidate with the exact same qualifications.”
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And a Vanderbilt University study noted that “Being overweight in the workplace is tougher on women than on men … Overweight women are more likely to make less money, work in more physically demanding jobs, and have less interaction with customers than average-size women and all men, including those who are also overweight.”
One of study’s authors said that “A morbidly obese woman working in an occupation with an emphasis on personal interaction will earn almost 5 percent less than a normal-weight woman … [but] [n]o matter what the type of occupation, obese men seem to do just as well as average-size men.”
As if you didn’t know that already!
BTW: A recent study from China found that height is important in hiring and the taller you are, the more you get paid. And women, again, suffer more from this bias than men.
Does The ADA Ban Discrimination Based Upon Weight?
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We’ve already mentioned that 49 states and virtually every locality in the US permit weight bias, i.e., do not consider weight a protected class, or prohibit discrimination based solely upon weight. (But law junkies note: in late 2014, the European Court of Justice ruled that “obese people can be considered as disabled, but stopped short of saying that obesity was a condition that needed specific protection under European anti-discrimination laws.”).
Does the issue of weight bias or obesity violate the Americans With Disabilities Act (“ADA”)? Can weight be considered a disability?
The answer is: perhaps, if the employee’s weight substantially impairs a major life activity, as per the ADA. To be considered a disability, the physical impairment must be outside the normal range (i.e., not just simply “overweight”) and the result of a physiological disorder. So mere obesity is not considered a disability without more – for example, if a medical condition such as hypertension or diabetes is caused or exacerbated by obesity, the obesity may be a disabling condition.
What about morbid obesity?
Let’s look at some illustrative cases.
A 5’3″, 230-pound Alabama employee sued under the ADA claiming that she was fired for being morbidly obese. She could not say whether her weight was caused by or caused any medical condition, and admitted that “her weight neither interfered with her ability to perform required tasks for her job nor impaired her ability to care for herself or engage in day-to-day activities.”
The Court held that “a plaintiff’s status as being overweight, without more, has been held not to constitute a disability within the meaning of the statute. … [s]o the critical question for purposes of assessing whether [plaintiff] is ‘disabled’ for ADA purposes is whether her obesity substantially limits one or more of her major life activities. [Her] own testimony unequivocally establishes that her weight imposes no such limitations.”
In 2013, a Kentucky employee, 5’4” tall, 425 pounds, and suffering from diabetes claimed that she was fired due to her “personal appearance,” and sued under a state law like the ADA. An appeals court decided that she suffered from morbid obesity, which it defined as “a person’s weighing either double his normal weight or at least one-hundred pounds more than his normal weight,” but ruled that “merely being overweight is not a disability — absent more.” It held that she “did not have an underlying physiological cause.”
However, the Court ruled that she had developed diabetes as a result of her morbid obesity, and therefore said that she “has established that her morbid obesity is an impairment contemplated by the statutory scheme and has established that merely being overweight is not a disability in itself.”
But wait! In 2013, the American Medical Association declared obesity a disease. One doctor said that “Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans.”
But will it change the way the legal system and the workplace deal with the problem?
“Beauty Bias”
Is there “appearance bias” or “beauty bias” in the workplace? And is it illegal?
There’s tons to be said about this, but sorry – that’s for another column!
Richard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at [email protected] and follow him on Twitter at @richard09535496.
