Wednesday, September 8, 2010

Weighing in On Weight Discrimination

In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before.  The increase in discrimination charges is likely the product of a poor U.S. economy.  Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination.  Of course, not every employment decision is based upon discriminatory motivation or animus.  To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan).  For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law.  Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law.  In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable.  An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy.  Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason.  Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.