Workplace Problem No One Talks About

Imagine how you’d feel if you didn’t get a promotion because of your religion or skin color. The only good news would be that you could probably sue your employer for discrimination.
 
But, what if you didn’t get it because you were overweight?
 
In most parts of the United States, there would be little you could do. But, a handful of local and state governments have       extended anti-discrimination protection to include weight as a protected class.
 
Here’s a closer look at how it works.
 
What is a Protected Class?
A protected class is a group of individuals sharing a characteristic that is protected by law. Race, national origin, sex and religion are commonly recognized protected classes. Unless an individual is a member of a protected class, she cannot sue for unlawful discrimination. A variety of federal laws establish a number of protected classes, including: race, national origin, sex, color, religion, pregnancy, age, disability, familial status and genetic information.
 
One potential protected class that is still up to legal debate is sexual orientation. Some federal courts, as well as the         Equal Employment Opportunity Commission (EEOC), believe Title VII of the Civil Rights Act of 1964 recognizes sexual orientation as a protected class. However, not all federal courts agree with this reasoning.
 
Right now, these federally protected classes do not include weight.
 
Weight Discrimination
There is good evidence that discrimination against workers who are overweight occurs.  Research data finds that individuals suffering from obesity are more likely to be “stereotyped as lazy, unmotivated, unintelligent, sloppy and lacking willpower.” This happens despite scientific studies showing genetics play a major role in an individual’s weight.
 
Studies also show that overweight workers likely suffer the effects of these negative stereotypes, including not getting hired or being passed over for promotion. To help combat this discrimination, a few states and cities have anti-discrimination laws that recognize discrimination based on weight.
 
Currently, only a few jurisdictions prohibit discrimination based on weight: Michigan, San Francisco, Santa Cruz, Urbana in Illinois, Madison in Wisconsin, Binghamton in New York and Washington, D.C.
 
Washington, D.C. is particularly noteworthy given the number of protected classes it creates through its D.C. Human Rights Act.
 
Washington’s Law Differs
The D.C. Human Rights Act prohibits discrimination in employment, housing, public accommodations and schools. It established the following 20 protected characteristics: race, color, religion, national origin, sex, age, disability, genetic information, marital status,         personal appearance, sexual orientation, gender identity (including gender expression), gamily responsibilities (the obligation to support a dependent family member), political affiliation, matriculation, familial status (basically, this means being a parent), source of income, place of business or residence, credit information and status as a victum of an intrafamily office (such as domestic violence and stalking). 
 
All of the above will apply in the employment setting, except for: familial status, source of income, place of business or residence and status as a victim of intrafamily offense. Besides the vast number of protected classes created by the D.C. Human Rights Act, it goes much further than most anti-discrimination laws in other ways.
 
First, the D.C. Human Rights Act applies no matter how small the employer is and even if the victim is an independent contractor. This is significant, as many anti-discrimination laws, especially at the federal level, don’t apply to employers unless they have 15 or more employees. Additionally, federal anti-discrimination laws usually only apply to workers classified as employees.
 
Second, there are few limits on the amount and type of damages a victim of discrimination can recover. If it turns out an employer has violated the D.C. Human Rights Act, the victim of discrimination is entitled to “any relief” the court deems  appropriate. This means a worker can receive equitable   relief, such as reinstatement or a promotion.
 
It also means the worker is eligible for compensatory damages as long as the court deems it “appropriate.” This includes back pay and lost benefits. Punitive damages are possible as well, although they usually aren’t imposed unless the employer’s discrimination is especially egregious. Unlike the federal Title VII statute, the D.C. Human Rights Act places no cap on the amount of compensatory or punitive damages a worker can recover.
 
Third, a victim can go directly to court to sue his or her employer. Most discrimination claims brought under federal law against a private employer must first be addressed by the EEOC before the worker can sue in court. Under the D.C. Human Rights Act, a worker can immediately file a complaint in D.C. Superior Court and bypass the administrative process of filing a complaint with the Washington, D.C. Office of Human Rights (OHR). For those who are wondering, the OHR is tasked with enforcing the D.C. Human Rights Act and is basically Washington, D.C.’s version of the EEOC.
 
Lawsuits
Given how few jurisdictions recognize weight as a protected class and the prevalence of weight discrimination in the workplace, much of the weight discrimination case law focuses on obesity as a disability. The law is not fully settled on this question, but there is a pending case before the Seventh Circuit Court of Appeals (Richardson v Chicago Transit Authority,  No. 18-2199) that addresses whether obesity is an “impairment” under the Americans with Disabilities Act of 1990.
 
As for lawsuits specifically alleging discrimination based on weight as a protected class, the number of cases is far fewer, although there is one in particular from a few years ago that received a lot of press. The case (Smith v. Hooters of Roseville Inc., Circuit Court for Macomb County, Michigan, No. 10-2213-CD) involved a Hooters waitress from Michigan who claims she suffered from             discrimination because she weighed too much, despite being 132.5 pounds and five feet eight inches tall.
 
Unfortunately, the case was not decided on the issue of weight discrimination. After spending time in court arguing whether the waitress had the right to sue or was required to arbitrate her grievance, the case made its way to arbitration where it settled.
One case that concluded on the question of whether an employer was guilty of weight discrimination was Harris v. Hutcheson. In this case, a dental hygienist alleged she was fired because her boss viewed her as being overweight and made constant comments indicating his displeasure with her size. However, she ultimately lost her case because the court concluded that she was fired for her professional conflicts with a recently hired dentist and not for her weight.
 
Bottom Line
Weight discrimination creates a significant and often ignored problem in the workplace. A few jurisdictions have recognized this, but more could be done.
 
Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, he works to protect the rights of clients facing pregnancy and caregiver discrimination, sexual harassment and wrongful termination in the workplace. To learn more, visit www.spigglelaw.com/.