FAT BIAS BARRED BY SMATTERING OF LAWS

In my last blog, I wrote that size discrimination can impede the hiring and advancement of overweight people. Although this type of bias is widely tolerated in the U.S., some legal protections do exist, and they’re the subject of this blog post.

A handful of laws have been adopted to shield overweight workers from discrimination and ensure they have equal opportunities for employment. Among the states and localities, for example, the District of Columbia has enacted provisions that bar discrimination based on personal appearance, and Michigan prohibits bias based on weight.

Under the D.C. law, employers can’t take into account a worker’s outward appearance "with regard to bodily condition or characteristics," except where standards are established and applied uniformly "for a reasonable business purpose." Employers that violate the law can be ordered to provide the victims of appearance discrimination with back pay and benefits, as well as damages for mental suffering, and pay fines of up to $50,000, plus attorneys' fees and interest.

In Michigan, discrimination based on weight is prohibited under the Elliott-Larsen Civil Rights Act. Employers that violate the law can be ordered to hire or reinstate the victims of weight discrimination, provide them with back pay and damages, cover their attorneys’ fees and other costs, and pay fines ranging from a maximum of $10,000 for a single violation to as much as $50,000 for two or more violations in a seven-year period.

Additional prohibitions against weight-based employment bias exist under local ordinances in at least five cities: San Francisco and Santa Cruz, Calif.; Urbana, Ill.; Binghamton, N.Y.; and Madison, Wis. These city ordinances may not call for $50,000 fines, but they still have teeth.

In San Francisco, for example, courts are instructed to award victims of weight discrimination three times the amount of damages for things such as lost earnings and emotional distress, and awards can also include punitive damages, attorneys’ fees and other costs.

Outside the jurisdictions listed above, employers generally don’t face restrictions aimed specifically at weight discrimination. Nonetheless, the Americans with Disabilities Act can come into play at the federal level if an overweight worker qualifies for protection under the law.

According to the Equal Employment Opportunity Commission’s interpretation of the ADA, if body weight falls outside a normal range or is the result of a physiological disorder (such as a thyroid condition), it can be an impairment under the law, EEOC Commissioner Chai Feldblum told Bloomberg BNA in a 2013 interview.

There’s an added hurdle to clear, however, since an impairment must substantially limit a major life activity or major bodily function to qualify as a covered disability. That determination requires an individualized assessment, and the outcome depends on the facts and circumstances of each case, Feldblum said.

The EEOC has sued employers under the ADA for actions taken against overweight workers. In one case, an employer was accused of illegally firing an employee because of her severe obesity, and a federal district court held that severe obesity is an impairment within the meaning of the ADA. The parties ultimately settled the case, and the employer agreed to pay $125,000 and provide other relief, including annual ADA training to HR personnel and corporate directors nationwide.

Even though these types of cases are quite rare, employers still may want to stop and think about any employment actions or policies that adversely affect overweight workers, just in case they create a risk of violating the ADA or other discrimination prohibitions.

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