Federal anti-discrimination laws do not specifically address the issue of employees’ weight. Michigan is the only state that has enacted a specific law that protects workers against weight-based discrimination at work. The Massachusetts legislature has considered a proposed weight discrimination law but has not adopted it.
Some cities, including San Francisco and Washington D.C., have their own municipal protections. Washington, D.C. prohibits discrimination on the basis of appearance, and weight may be considered a factor in a person’s appearance. Santa Cruz, California, like San Francisco, expressly prohibits weight discrimination.
But generally, federal, state, and municipal laws leave overweight workers without meaningful legal protections.
Title VII of the Civil Rights Act of 1964 states that all workers have a right to a workplace that is free of discrimination based on race, color, religion, sex, or national origin. This law has been used in weight discrimination cases in which weight standards for employees in certain occupations have been applied differently to members of different protected classes, such as women and men, or if weight standards have an adverse impact on a protected class.
So, in most cases, workers must determine whether weight discrimination is linked to another protected status, such as gender or disability. If a person needs help understanding their community’s laws and whether they apply to a person’s situation, they should contact an employment lawyer.
What Is Weight Discrimination?
In a recent study, people were shown images of four women and four men with identical resumes. All eight images showed people at healthy (but varying) weights. When asked, the test subjects consistently ranked the slightly heavier workers as less employable. This was especially so if the heavier workers were women.
More than 70% of Americans suffer from obesity. Weight can have a subtle, but negative impact on a person’s employment and compensation. If a person has been denied a job or promotion because of unfair perceptions about their weight, they may be the victim of weight discrimination. While most weight discrimination involves obese or overweight workers, thin workers may also be the subject of unfair and illegal actions.
Anti-discrimination laws apply at every stage of the employment process—from hiring to firing. They protect members of “protected” classes from adverse employment actions. Protected classes include disability, gender, race, national origin, age, and religion. Weight discrimination may be based on multiple factors, including:
- Unfair perceptions that an overweight worker cannot perform a job
- Concerns about increasing health insurance premiums
- Unfounded concerns about absenteeism and health issues
- Placement of overweight workers in jobs away from the public.
- Unfortunately, there are limited legal protections that address weight discrimination.
Could an Employee File a Disability, Gender, or Other Discrimination Claim?
The state of being overweight per se does not place a person within a protected class under federal and state laws that ban discrimination. However, other anti-discrimination laws may offer some protection in some situations. For example, a person’s weight may be related to a disability, their gender, or other protected class membership. In these situations, a person may have a claim against their employer.
Some employers are tackling the problem and working to prevent weight discrimination in their workplaces in spite of the lack of anti-discrimination laws. They work proactively to make the workplace a source of positive experiences for overweight employees.
Among the strategies they use is to establish employee groups who are interested in the issue and committed to addressing it. They may advocate within the workplace for policies that promote size inclusivity and education about weight discrimination and body shaming. They model open discussions about the issue and try to raise awareness among co-workers about micro-aggression against fat people.”
In some workplaces that are especially committed to eliminating weight discrimination, human resources employees may ask employees to share any experiences they have with this type of discrimination as soon as it occurs. They basically use some of the same approaches to address other forms of discrimination in the workplace.
An employer who is seriously committed to eliminating weight bias and discrimination might incorporate weight into their regular diversity, equity, and inclusion practices. Talking about it, along with other forms of bias in discussions about inclusion and diversity, is a place to begin.
In addition, employers want to establish a policy of no-tolerance and possibly include consequences. Again, open communication, including clearly stating a policy, would be part of a plan to address weight discrimination in the workplace.
A good place to begin would be for employers to reflect on whether they themselves entertain biases and then being open to hearing about this type of discrimination. They might benefit from discussing the issue with others, especially people who are overweight and might share what discrimination looks and feels like. Again, they can look to their policies and practices regarding other forms of discrimination as models of how to address weight discrimination.
Of course, there are consultants who are available to advise companies that want to address the issues.
Does the Americans with Disabilities Act Prohibit Weight Discrimination?
The Americans with Disabilities Act (ADA) prohibits discrimination against people with actual and perceived disabilities. A person is disabled within the meaning of the ADA if they suffer from any of the following:
- A physical or mental impairment that significantly limits one or more of their major life activities,
- A history of an impairment, or
- It is viewed by other people as having an impairment.
An employee who is disabled under the ADA is entitled to reasonable accommodations and is protected against discrimination based on their disability.
Unfortunately, the ADA does not characterize unexplained obesity or weight gain as a disability. Instead, a person qualifies for ADA protections only if one of the following is true:
- A person’s weight is caused by an underlying medical or physiological condition, such as thyroid dysfunction, or
- A person is severely obese, e.g., twice the average BMI.
It may be difficult to identify a medical cause for a person’s weight, and many workers do not reach the level of severe obesity. However, the Equal Employment Opportunity Commission (EEOC) has successfully filed lawsuits for those who qualify for ADA protections.
Is Weight Discrimination Treated Differently Between Men and Women?
Gender also plays a role in weight discrimination. Studies show that overweight and obese women tend to be paid less than workers who weigh less. Under certain circumstances, gender-based weight discrimination may be illegal.
For example, it is illegal for an employer to impose a seemingly neutral job requirement that primarily impacts a protected class. In some industries, weight and height requirements have been implemented to exclude women.
Federal courts have regularly found height, weight, and other size requirements to be discriminatory based on a theory of disparate impact. In these cases, there was no legitimate feature of the job that required a certain height or weight of the person who performed it. The EEOC strongly discourages the use of height and weight requirements that are not tied to job performance.
Can a Lawyer Help Me File a Weight Discrimination Claim?
A weight discrimination claim may require a detailed legal analysis. Municipal, state, and federal laws would have to be researched. Because most communities do not specifically protect obese, overweight, and underweight individuals, you must consider alternate sources of protection, such as disability and gender-based disparate impact.
An experienced discrimination lawyer can help evaluate whether you might be able to make a claim. If so, they could identify the right government agency to which a person would submit the claim. A lawyer can also make sure you meet court and administrative agency filing deadlines and present your best case.
