Legally Speaking: "He Ain't Heavy � He's My Client"

John G. Browning Jan. 2, 2008, 5:36pm

Whether you've put on a few extra pounds after succumbing to holiday temptations, or if you've struggled with weight issues for years, one of the last places you want to be reminded of your size is the workplace – especially if your physique has nothing to do with your job performance.

The unfortunate reality, however, is that physical appearance can have a tangible effect on one's paycheck. Employees are fighting back against appearance standards or hiring based on looks, and a growing number of cities and states are providing ammunition for this battle in the form of laws prohibiting discrimination on the basis of height and weight.

Study after study has documented the role that weight plays in workplace advancement. Despite the fact that some 30 percent of American adults over the age of 20 are classified by the National Center for Health Statistics as obese, research has consistently shown that overweight and obese people are less likely to be hired for jobs for which they're well qualified.

In an analysis of 3,335 men and women performed by the National Bureau of Economic Research, a 1 percent increase in body mass translated to a 0.6 percent decrease in family income for women.

According to Mark Roehling, a management professor at Michigan State University, "Hiring, firing, discipline, training, wages, we've got more than 40 studies now in both the lab and the workplace. People in all of them tell you they discriminate on the basis of weight. I had one guy tell me there was one kind of person he absolutely wasn't going to hire – a fat girl. And the punch line is, this guy was overweight himself."

In one of these studies, 26 percent of respondents who identified themselves as overweight reported being stigmatized at work and passed over for promotions; among those who considered themselves "very obese," the percentage climbed to 84 percent. These perceptions would appear to be borne out in paychecks. Across the board, overweight people make 1-6 percent less than their thinner counterparts, while those in service professions earn less in commissions and tips.

Of course, discrimination doesn't begin when one enters the workforce. According to a study on youth weight bias performed by researchers from Yale University's Rudd Center for Food Policy and Obesity, stigmatization directed at obese children by their peers, parents, and even educators is "pervasive and often unrelenting."

As television and other media reinforce negative stereotypes, the result is a form of bias that is "very socially acceptable" and "rarely challenged," says Dr. Rebecca Puhl (lead author of the Yale study). In a 1999 study of 115 middle and high school teachers, 20 percent said they believed obese people are untidy, less likely to succeed, and more emotional.

We have the Americans with Disabilities Act (which doesn't classify weight as a disability in and of itself) and a slew of other federal and state laws barring discrimination based on race, religion, gender, age, and disabilities.

A shock jock might lose his job for making racist and sexist comments about a women's college basketball team, but he can tell fat jokes for a solid month with no repercussions.

With more and more medical research pointing to genetic predispositions for obesity in many, the argument that "fat is a choice" that therefore warrants discrimination against the overweight seems less justified. So why is it okay?

The answer is, it's not all right – particularly if you live in one of the places that now forbids such discrimination based on height and weight. This past summer, Massachusetts legislation sought to make it only the second state (after Michigan) to bar this type of discrimination.

Introduced by State Rep. Byron Rushing (who, for the record, is 5'11" and 170 lbs), the Massachusetts law would ban discrimination based on height or weight mainly in the workplace, but would also apply to landlords and real estate transactions.

The District of Columbia also outlaws employment discrimination based on personal appearance. In 2000, San Francisco added height and weight to the same anti-discrimination codes that provide protection against bias (in housing, employment, and accommodations) based on race, religion, age, gender, disability, and ethnicity.

Professions that tie job performance to a certain level of physical activity, such as police and firefighters, are exempt from this ordinance. Santa Cruz, Calif., has a similar ordinance barring discrimination based on height, weight, or physical characteristics.

Rep. Rushing says that he's heard from many constituents who were refused jobs because of their weight. Often, potential employees are told they won't be able to perform the job adequately, so they're denied the chance to prove that they can.

But critics fear that such a law could have expensive, indeed, and open a veritable floodgate of litigation as protections are expanded to encompass short and overweight workers. Conservative analyst Todd Donke says "We might as well add colorblind, left-handed, allergic-to-cashews, and get it over with."

Such concerns are undercut, however, by real world experience; for example, Michigan's anti-discrimination statute has been on the books for 28 years yet has prompted only a handful of lawsuits.

Similar doomsday predictions were made about the Americans with Disabilities Act, yet in 2007 an American Bar Association study estimated that 98 percent of disability discrimination lawsuits are decided in favor of the defendants. Ultimately, employees will have to prove that the problem is all due to the employer, and that could be a daunting task.

Perhaps the most important byproduct of the Massachusetts legislation will not be seen in any courtroom, but will be reflected in a change in attitudes. Many overweight people simply want opportunities that are currently being denied to them.

Jennifer Portnick, for example, wanted to be a Jassercise franchisee but the 240 lb. woman was denied the chance because of a company policy requiring exercise instructors to have "a fit appearance."

Portnick filed a civil complaint under San Francisco's anti-discrimination ordinance; when the company changed its policy, she dropped her complaint. Today she is a personal trainer who teaches aerobics classes for people of all sizes.

Says Portnick, "We talk so much in workplaces about diversity. Do we want everyone to fit into one mold? I don't think that helps any company."

I couldn't have said it any better myself.

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