Weight Discrimination In the Workplace

About one third of Americans are obese, defined as having a body mass index (BMI) of 30 or higher. (BMI is based on weight and height; someone who is 5'9" would have to weigh at least 203 pounds to qualify as obese.)

But if you experience weight-based discrimination at work, are you protected by state or federal laws? Read on to learn more.

What Is Weight Discrimination?

Weight discrimination (sometimes referred to as size discrimination) occurs when someone is treated differently because of his or her weight. The primary federal antidiscrimination law known as Title VII doesn't include obesity as a protected characteristic, which means it does not prohibit employers from discriminating based on weight.

The state of Michigan has outlawed employment discrimination based on weight, as have some cities and local areas, including San Francisco and the District of Columbia. If you work in a place that has such a law, your employer may not make job decisions based on your weight.

Is Weight Discrimination Illegal?

No federal law protects employees from discrimination based on obesity or weight. Only one state, Michigan, and a handful of local governments provide this protection.

However, the Americans with Disabilities Act (ADA) may protect the obese from discrimination in some cases.

Is Obesity a Disability?

The ADA protects employees and applicants with disabilities from discrimination, and requires employers to make reasonable accommodations for employees with disabilities.

The ADA states that height and weight, within normal parameters, are not disabilities. However, some courts and the Equal Employment Opportunity Commission (EEOC) have found that obesity might qualify as a disability, at least in some circumstances:

• If an employee or applicant has an underlying physiological impairment that has resulted in obesity (such as diabetes), the employee may be protected. The employee would have to prove that he or she had a disability as defined by the ADA. In other words, the employee would have show not only that he or she had such an impairment, but also that it substantially limited a major life activity or major bodily function.
• The EEOC has said that "severe" obesity, defined as a weight that more than twice the norm, is itself an impairment that could be a disability. Again, the employee would have to show that it substantially limited a major life activity or major bodily function.
• If an employer incorrectly perceives an employee as having a disability based on the employee's obesity, that employee would be protected by the ADA. In other words, even if the employee's condition didn't substantially limit a major life activity or prevent the employee from doing the job, the employee is protected from discrimination by an employer who makes these incorrect assumptions based on the employee's obesity.

Can I Be Fired or Punished For My Weight?

Michigan is the only state that has a law specifically prohibiting weight-based discrimination. That means employers might be permitted to make employment decisions on the basis of a person's weight.

But as noted above, some courts and the EEOC have indicated that weight can qualify as a legally protected disability under certain circumstances. And weight-based discrimination can be illegal if it has a disproportionate impact on legally protected groups.

Other Discrimination Laws

An employer who discriminates based on obesity might run afoul of laws that prohibit other types of discrimination under a disparate impact theory. A disparate impact lawsuit doesn't claim that the employer intentionally discriminated based on, for example, race or gender. Instead, it argues that the employer's facially neutral policy, practice, or selection criteria had a disproportionate negative effect on a protected group.

Obesity rates vary widely by race and gender. For example, statistics from the Centers for Disease Control show that African Americans have a higher rate of obesity than non-Latino white Americans. An employer's policy of refusing to hire obese applicants could have the effect of screening out disproportionate numbers of African Americans, and be challenged as racially discriminatory, under a disparate impact theory.

What to Do If You Are Facing Weight Discrimination

If you believe you have been denied a job or otherwise discriminated against because of your weight, you should consider consulting with an experienced employment lawyer. A lawyer can help you assess the situation and figure out whether any legal protections apply.