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Weight Discrimination Laws, Rulings, Attorneys

Laws

Title VII of the Civil Rights Act of 1964 declares that all persons within the United States have a right to employment free from discrimination based on race, color, religion, sex, or national origin. It has been used in weight discrimination cases where weight standards are applied differently to different protected classes (e.g. women and men), and where weight standards have an adverse impact on a protected class.

The Rehabilitation Act of 1973 prohibits discrimination against an otherwise qualified individual with handicaps, solely on the basis of that handicap, in any program which receives federal assistance.

The Americans with Disabilities Act of 1990 (ADA) extends the protection against discrimination on the basis of disability to the private sector.

State of Michigan: Elliot Larsen Civil Rights Act, Act 453 of 1976, Sec. 209, bans discrimination in employment based on race, color, religion, national origin, age sex, height, weight, or marital status. (Mich. Comp. Laws Ann. 37.2102 (1985 & Supp. 1993).

Local Ordinances

Santa Cruz, CA (July 1992), defines unlawful discrimination as "differential treatment as a result of that person's race, color, creed, religion, national origin, ancestry, disability, marital status, sex gender, sexual orientation, height, weight, or physical characteristic".

District of Columbia, Human Rights Law Subchapter II, Sec. 1-2512, outlaws discrimination in employment based upon "race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, or political affiliation". (D.C. Code Ann. 1-2501 (1987 & Supp. 1993).

San Francisco, CA (June, 2000) passed a law specifically outlawing discrimination against people based on their weight

Rulings against those charging weight discrimination:

Many weight discrimination cases are argued on the basis of disability discrimination or perceived disability discrimination. Unfortunately, 98 percent of disability discrimination lawsuits are decided in favor of the employer, according to the American Bar Association [New York Times, July 26, 2000]. There have been cases, however, in which the court made it clear that they would have ruled for the plaintiff if it had been argued as a disability case.

The Supreme Court of California ruled in September 1993 against plaintiff Tony Cassista who sued Community Foods for refusing to hire her because of her weight. The Court said that if she had said she was disabled because of her weight (which she said was not the case), she would have been protected under California law. (Cassista v. Community Foods, Inc., 856 P.2d 1143 (Cal. 1993)

Rulings in favor of those charging weight discrimination:

The U.S. Circuit Court of Appeals ruled (November 22, 1993) for plaintiff Bonnie Cook, who sued a Rhode Island home for the mentally disabled for refusing to rehire her because of her weight, even though she had performed the job satisfactorily in the past. The Equal Employment Opportunities Commission filed an amicus curiae brief in support of the plaintiff, saying that morbid obesity, even if voluntary, is a protected disability under the Americans with Disabilities Act. (Cook v. State of Rhode Island Dept. of Mental Health, Retardation and Hospitals, 783 F. Supp. 1599 (D.R.I. 1992))

The Rhode Island Court of Appeals decided in favor of plaintiff Sharon L. Russell who sued Salve Regina College for expelling her for not losing weight. The State of Rhode Island appealed the case to the Supreme Court of the United States, which, in 1990, returned the case to the Court of Appeals for reconsideration as a simple contract dispute. The Appeals Court again found in favor of Russell, who was awarded lost tuition and other expenses. The decision was not based on the question of the legality of weight discrimination. Russell v. Salve Regina College.

A California jury ruled (November 9, 1990) in favor of plaintiff Jesse Mercado, who was fired by the Los Angeles Times for being too fat. The Times argued that Mercado's obesity was transitory or voluntary, but the jury found that he was protected by the California Fair Employment and Housing Act, which includes physical handicap and medical condition as protected categories.

A Maryland Court ruled in October, 1990 in favor of four plaintiffs (Dorothea Goodman, Carlissa V. Hawkins, Jacqueline Wilson, and Betty Wright) who were refused jobs as bus drivers by the Maryland State Transit Authority for being over their height/weight limit. The Maryland Human Relations Commission argued their case for eleven years in the courts, which finally ruled that the Transit Authority had perceived them as handicapped whether or not they were, and that they had been unfairly discriminated against. They were given the opportunity to reapply for the jobs.

A New Jersey Administrative Law Judge ruled in December, 1988 in favor of plaintiff Joseph Gimello, who was fired by Agency Rent-a-Car for his weight, even though all previous evaluations had been excellent. His case was argued on the basis that he was physically disabled and therefore covered under the New Jersey Law Against Discrimination. He won back pay, attorneys' fees, and $10,000 for pain and suffering. (Gimello v. Agency Rent-A-Car Systems, Inc., 594 A.2d 264 (NJ Super. A.D. 1991).

The North Dakota State Personnel Board ruled in early 1988 in favor of plaintiff Melvin Hansen, who was fired as a weight inspector for the Highway Patrol because he was too fat. The Board said: "This ruling underscores that state employees cannot be fired because of obesity if [their weight] does not interfere with job performance".

Finding An Attorney

For an attorney referral in your area, visit the website of the American Bar Association, click on your state, and then find your county, nearest city, or local area. Referrals are made to lawyers who specialize in many areas, including employment problems and civil rights issues. Referral through the American Bar Association or your state or local Bar Association entitles you to a half-hour initial consultation with an attorney at no charge or for a nominal fee. After the half-hour, you can decide if you want to hire the attorney to handle your case.

American Bar Association Attorney Referral Service

Attorneys in various parts of the United States that have experience in weight discrimination include:

Fernandez & Lauby LLP
7700 Irvine Center Dr, Ste 800
Irvine, CA 92618
(949) 788-2905
Web Site: Fernandez& Lauby

Kenneth I. Friedman, Esq.
Beck & Eldergill
447 Center St.
Manchester, CT 06040
860-646-5606

James Goodman, Esq.
Injuries to Persons with
Disabilities Law Center
100 Peachtree St NW Ste 2100
Atlanta, GA 30303
404-524-5626
Email: James Goodman, Esq.

Lynette Labinger, Esq.
Roney & Labinger
344 Wickenden Street
Providence, RI 02903
401-421-9794

James Loots, Esq.
Law Offices of James M. Loots PC
236 Massachusetts Ave NE Suite 204
Washington, DC 20002
202-536-5650
202-315-3515 - fax
202 359-0442 - mobile
email: James Loots, Esq.
Web Site: Loots Law

James J. Parks, Esq.
Gabrian and Parks, P. C.
2525 Telegraph, Suite 302
Bloomfield Hills, MI 48302
248-334-6464

Frank Pray
Employment Law Office
5160 Campus Drive
Newport Beach, CA 92660
949-251-1006 Work
949-637-3360 Mobile
Email: Frank Pray
Web Site: Employee Rights Atty

Sondra Solovay, Esq.
Beyond Bias
2625 Alcatraz Avenue PMB #261
Berkeley, CA 94705
Fax: 510-452-2114
Email: Sondra Solovay, Esq.
Web Site: Beyond Bias

Getting the Law Changed in Your Area

Some of the problems faced by people of size can be helped with laws that give them legal recourse in cases of patently unfair or inhumane treatment of the kind discussed on our website.  It can be very difficult to get such laws passed, but some of the more successful changes have been made in laws that already require equal treatment for various disadvantaged groups, and to which "size" and/or "weight" is simply added as an additional protected class of people.  This has been done in a few individual cities, but it is possible that it could be done for an entire state or even a sovereign nation.

For example, in the country of Iceland, which has been drafting a new constitution, such an effort has been made by Sigrun Danielsdottir, a licensed psychologist in Reykjavik, Iceland, and who is also the president of the Icelandic Association for Body Respect.  In October, 2012, the association asked the group that is drafting the constitution, to add "weight"  to the list of protected classes listed under the section on equality.  The CSWD has decided to make a public statement, as follows:

"The Council on Size & Weight Discrimination (founded in 1991) supports the efforts to add wording to the new draft Constitution in Iceland that would prohibit discrimination based on the size and weight of its citizens. In the future, many groups may enjoy equal treatment under the law, and persons of size should be included. Sadly, discrimination against larger people is commonplace throughout the world. Iceland should set an example for other civilized nations."

Alternatives to Legal Action
Disclaimer: This page does not offer legal advice, for which you should consult an attorney.

There are many circumstances where legal action is not possible or where such action would probably not be effective. Remember that weight discrimination is still not illegal in forty-nine of the fifty United States. Michigan is the one state with laws that include height and weight as protected categories under anti-discrimination law. There are also local ordinances making weight discrimination illegal in San Francisco, Santa Cruz, and Washington D.C.

Even in cases where other laws (such as disability discrimination or age discrimination) can be used, the trend is toward more conservative policies, and court rulings in recent years have tended to favor employers more than employees. Most attorneys will not take cases of harassment or humiliation based on body weight. Even cases of blatant weight discrimination (such as being fired because of weight when you did the job perfectly well) can be difficult to fight and win. Although we at the Council are working to change things, for now the fact is that there are virtually no laws against weight discrimination.

At the same time, there is more support than there has ever been for people who are larger than average. A study by the NPD Group in December, 2002 showed that Americans are "more accepting of overweight people" than they have been in the past. Nearly 76 percent of people say it is "OK to be overweight." That is up from 45 percent in 1985.

There are several things you can do if you are a victim of weight discrimination and either cannot take legal action or else decide not to do so. Here are some alternatives to legal action, along with stories from our files.

1. Get support from allies. These could be friends, co-workers, family members, advisors, counselors, or health professionals. They can help you work through your own issues, and they can also help you fix the problem by standing with you, speaking out in your defense, or simply by letting others know by their actions that they support you.

2. It is often effective to write letters of complaint. If an agency or company discriminates against you, do research to find out which department handles complaints, and then write a letter to that department. Include copies of documentation, including your notes of conversations. Start a file and keep copies of everything you send and everything you receive. If you are mistreated by a co-worker, manager, or boss, you could write to that individual with a detailed description of the events that took place. At the bottom of the letter, note that you are sending a copy of this letter to the person's superior and to any and all other interested parties.

(Warning: Please note that writing such a letter can be a double-edged sword. If your boss or your company is likely to take action against you or to fire you for writing a letter of complaint, please do not take this action. Please carefully consider both the benefits and the risks of any confrontation, whether spoken or written.)

3. Media can be a powerful ally. Find out who does the consumer complaints reporting for your local newspapers and television stations, and get in touch with them. They are especially interested in stories where someone is wronged by the system, or by unfair policies, or by a person or company that mistreats the person without good reason. The public, even though they are prejudiced against heavy people in general, are often sympathetic to a real person whose situation is explained to them and who becomes an individual in their minds.

Charlie B., Rochester, NY, was unable to find medical care. He had a condition that required a cat scan, and his local hospital's machine was not large enough to accommodate him. He took his story to the local newspaper, which ran a story about his struggles. As a result of the story, several hospitals with larger equipment got in touch and offered to handle his case. The hospitals got excellent publicity, and Charlie got the health care he needed.

4. You may want to talk directly to the person or person who discriminated against you. It is best not to do this in an angry or confrontational manner, but rather in the spirit of problem-solving. Assume that their actions came from lack of understanding, and that your purpose is to educate them on the realities of the situation. You may decide it is best to tell them how the discrimination made you feel, or, in some circumstances, you may feel that the best way is to be strictly level-headed and rational and explain why their actions were not productive.

Case: Henry R., Minneapolis. At five feet, ten inches and two hundred eighty-five pounds, Henry was the largest person in his section at a computer company. His boss told him his weight was a problem, since he didn't fit the youthful, healthy image his company was trying to project. Henry had tried many times to lose weight, but always gained it back. Finally his boss told him to lose weight or else he would be in danger of disciplinary action. After consulting with the Council, Henry decided to try to discuss the situation honestly with his boss. He asked for a meeting, and came armed with scientific and medical information on how difficult it is to keep weight off. He also brought his own employment records, showing that he had very little absenteeism, and showing his excellent evaluations. He asked his boss to reconsider his ultimatum, and pointed out that he was a valuable employee, and that his weight had never interfered with his ability to do his job well. Henry's boss said that he appreciated Henry's honesty and industry in making this presentation, and decided to give Henry a second chance. He told Henry to keep on trying to eat better and get more exercise. He said he hoped Henry would lose some weight, but that he would not fire him over it. Henry continues to work at the same company, and has a better relationship with his boss.

5. You may decide to do nothing official, and that is a valid choice. Sometimes, especially in employment situations, you would jeopardize your job or your relations with those around you if you confronted the person or persons who discriminated against you. If you decide not to take action, consider talking the whole thing over with someone you trust. It is often helpful to talk it through with a friend or counselor so that it doesn't stay bottled up inside you.

Case: John P., Los Angeles. John worked in a busy newsroom, and although he was very heavy, he managed to do all the work necessary, including a lot of walking. The problem was that a few of his co-workers, and even one manager, constantly made fun of him, calling him names, making pig noises behind his back, and even squeezing his large arms and poking his belly. John asked the Council for help, and consulted a lawyer. Unfortunately, both the lawyer and the Council's legal consultants felt that John would not win if he were to press a lawsuit, since the situation was one of bullying, and since there are currently no laws in California (except in San Francisco) that prohibit weight discrimination. John further felt that confronting the people who were harassing him would not help, and might make it worse or even get him fired. He decided to take no action, but just to act friendly towards all his co-workers. He also decided to talk to a counselor and work through his issues within himself. The Council referred him to several mental health professionals in the area who were size-friendly and would understand that his problem stemmed from being bullied, not from being heavy.