Is Weight Bias A Valid Employment Discrimination Claim?
Should weight be a protected class? How about looks? Is there a bias in the workplace against people who are “overweight?”
A newly-filed lawsuit presents us the opportunity to discuss the issue of weight discrimination. Only one state – Michigan – outlaws weight discrimination in employment (as do a small number of municipalities).
According to CBS/Detroit, a former store manager is suing in federal court in Detroit claiming that she was fired after 10 years because she gained over 100 pounds over that time. The company, however, says it was because of “performance issues.”
Her evidence? “She says that she was encouraged to watch TV’s ‘The Biggest Loser’ and reminded about previous Lean Cuisine lunches.” Her attorney said that “Then it would get a little more intense, things like, at a performance review ‘whatever happened to the girl who would bring in her Lean Cuisine for lunch every day?’” An area manager also allegedly said that her weight was a factor.
Forget for the moment the issue of proving such a claim, and let’s focus instead on the claim itself.
Surveys have shown that “weight bias” is rampant in the employment arena. In fact, on the scale of overweight to severely obese there is a 12 to 100 times more likelihood of discrimination.
In 2014 I wrote in my prior blog about a Vanderbilt University study cited in Business News Daily which 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.”
Professor Jennifer Shinall, the author of the study, 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 working in an occupation with exactly the same emphasis,” but that this is not true for men.
“No matter what the type of occupation, obese men seem to do just as well as average-size men. They make just as much as non-obese men and make just as much money in both personal interaction occupations and physical occupations.”
I also wrote about an article in The Pittsburgh Post-Gazette which cited a 2008 study by The Rudd Center for Food Policy & Obesity at Yale University which “found overweight adults were 12 times more likely to report having experienced weight-based employment discrimination than thinner persons. Of the study’s participants, 60 percent experienced at least one occurrence of employment-based discrimination due to weight issues.”
Rebecca Puhl, deputy director at the Rudd Center, said that:
“I think what’s safe to conclude is that weight discrimination occurs at every stage of the employment cycle from getting hired to getting fired. What we see in experimental studies, for example, is that hiring professionals are less likely to hire an overweight candidate as opposed to a thinner candidate with the exact same qualifications.”
“Unfortunately, weight bias is alive and well,” notes the director of communications of an organization known as the Obesity Action Coalition (“OAC”). OAC’s website states that it “is a nearly 50,000 member-strong 501(c)(3) national non-profit organization dedicated to giving a voice to the individual affected by the disease of obesity and helping individuals along their journey toward better health through education, advocacy and support.”
Does the issue of weight bias or obesity violate the Americans With Disabilities Act (“ADA”)?
Perhaps, if the employee’s weight substantially impairs a major life activity. It may also implicate the ADA because of medical conditions caused or exacerbated by obesity, such as hypertension or diabetes, which have been held to be disabling.
But that is for a future series in this blog.
Look forward also to a series on “Lookism,” or beauty bias.