JOB CITES: Being aware of ‘anti-fat prejudice’ is worth its weight

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By Warren E. Buliox

A good friend of mine — not named Warren — is around 5-foot-9 with boots on, and over the last few years or so has fluctuated between 185 and 200 pounds.

One certain “doctor” (not to be named) and the American Heart Association, among other organizations, tell him that given his weight and height he may be overweight. He joins a group, then, of approximately 149.3 million Americans who are considered overweight or obese.

Other than some of the obvious health concerns with being significantly overweight, this would not be a problem but for the unsettling fact that approximately 12 percent of all U.S. adults report some type of discrimination based on their weight, size or shape, whether it be at work or at public establishments like restaurants and clothing stores.

According to at least one study, weight discrimination or “anti-fat prejudice” is more prevalent than age or gender discrimination, and may be on par in some instances with  race discrimination.

I think we can all agree that this is a problem. But is it illegal in the workplace? There is no federal law that specifically affords legal protection to overweight people and/or prohibits discrimination in the workplace on the basis of weight. With the exception of Michigan and a very small handful of municipalities, there are no state or local laws that afford legal protections to overweight people either.

So are overweight people living outside of Michigan and the few municipalities that prohibit weight discrimination out of options? Not necessarily.

Significantly overweight people who are considered obese may qualify for protection under the Americans with Disability Act, which prohibits discrimination on the basis of a disability. The Equal Employment Opportunity Commission, for instance, has taken the position that morbid obesity (which is defined as being more than 100 percent overweight) can qualify as a “disability” under the ADA. The EEOC has also taken the position that people who are simply obese (as opposed to morbidly obese) and whose obesity is the result of a physiological disorder/condition may be disabled for purposes of the ADA.

What about people who are simply overweight?

Being overweight, in and of itself, will not likely qualify for ADA protections. But, a weight problem can sometimes be linked to an underlining medical condition, like hypertension, diabetes, heart disease, etc. To the extent the underlining medical condition substantially limits a major life activity (such as, but not limited to, seeing, walking, working, sleeping, concentrating, etc.), the condition qualifies as a disability under the ADA and is afforded legal protections.

There is a balance to strike here though.

Employers should be careful not to judge or be quick to assume a person is disabled or limited because of their weight, as doing so may lend itself to liability. A disability under the ADA includes a “perceived” disability. Hence, attaching stereotypes to overweight people and assuming, without medically supported evidence, that they cannot perform essential functions of a job (say, in construction) because they are overweight and “out of shape” can result in a court finding a “perceived” disability. If an adverse employment action follows this perceived disability, a lawsuit and liability possibly ensues.

From this, we gather that employees can pursue weight discrimination related claims through the ADA by alleging real or perceived disabilities.

You and I alike wonder, then, whether there are any other potential claims employers should be aware of that can be tied to weight? As it turns out, one study suggests that women are 16 percent more likely to report discrimination in the workplace on the basis of their weight than are men. Another study suggests that women are twice as likely to face weight-based discrimination. These facts, as you can probably imagine, have led to some hefty and interesting sex-based discrimination cases.

In one case out of California, for example, the 9th Circuit (which covers Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) held that weight-based negative evaluations given to an overweight female deputy sheriff and not overweight male deputies were enough, in part, to withstand a directed verdict in a Title VII sex discrimination case.

The point in all of this? Weight discrimination in the workplace is a real phenomenon and one that has found its way into courts and, in some cases, has exposed employers to significant liability. Yet, the recommended way to deal with this is simple: Treat employees with both real and perceived weight issues fairly and with dignity and respect. You may even be well served to include a mention of weight discrimination (and its potential for liability) in your next training session with managers and supervisors and to make sure you are always engaging in interactive processes for employees who may have disabilities, including those whose disabilities may be connected to their weight.

Warren Buliox is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via email at [email protected].