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My Crystal Ball: Personal Appearance And Weight Discrimination May Be On The Horizon…

Traditional discrimination issues continue to create challenges for employers. Despite Title VII having been passed over 45 years ago, the number of race, gender, and age discrimination charges filed in America suggests that discrimination isn’t going away. In fact, the number of charges filed with the Equal Employment Opportunity Commission (EEOC) rose sharply in 2008 and stayed at the same high level in 2009.  Given the Obama Administration’s increased focus on enforcement of labor laws, it is a fairly safe assumption that 2010 will note even further increases in the number of charges filed.

To make things more complicated, new challenges are on their way, including the evolving areas of personal appearance and weight discrimination. State and local laws regarding weight and personal appearance discrimination are beginning to arise, and a few courts have even started to evaluate these claims under federal law absent the passage of specific legislation prohibiting discrimination based on these new categories.

Employers should be aware of these potential new laws and court decisions, as they pose substantial issues for the workplace.  There are several reasons that personal appearance and weight discrimination legislation would expand and continue to complicate employment litigation.  First, studies suggest that personal appearance and weight discrimination are real and significant issues. Anecdotal evidence regarding hiring and promotion decisions supports that conclusion as well.  Second, however, is that “personal appearance” and “weight” are difficult to define for purposes of discrimination law, unlike most other discrimination areas (e.g., race, gender, national origin, and age) with characteristics that are more easily identified. This makes litigation about weight and appearance discrimination is very subjective and thus more complicated.

Moreover, most characteristics covered by discrimination law are not subjects of choice.  Race and gender are generally decided by heredity.  Age is also a discriminatory characteristic that increases for everyone, and there is no choice in this regard.

In contrast, while personal appearance and some instances of obesity may in many instances be the result of a person’s choices.  And in other cases, such conditions may be determined through heredity or genetic considerations.  There should be considerable concern that weight discrimination could be expanded substantially beyond only extreme cases where an individual is morbidly obese or anemic to the point where they may be unable to safely perform the functions of the job.  And the subjectivity of personal appearance discrimination is unwieldy to define.

Alternatively, the new laws may simply state that weight or personal appearance discrimination is unlawful irrespective of factors such as the medical definition of obesity, so long as the decision maker perceived the individual in question to be undesirable due to appearance or weight. Worse yet, a state legislature or court may add that such discriminatory intent need only be a factor in the decision not to hire or promote, or to fire. One also can imagine an ADA-like direct threat defense arising where obesity creates a danger on the job, such as with construction workers who are required to climb ladders.

It is unlikely that Congress will pass federal legislation in 2010 addressing these issues, but they are gaining momentum in different states and municipalities.  The debate over whether these areas merit legal protection will undoubted continue, and I anticipate may gain some traction.  Weight issues in particular put employers in a very difficult position. While there is no question that weight bias exists, there also is little doubt that obesity causes an increase in lost time, health insurance costs, and, less often, safety problems.  As a result, employers may have a legitimate concern about the productivity and safety of some overweight employees.  That again makes weight discrimination different from race and gender, where no insurance or other similar costs are incurred from an employer’s compliance with the law of nondiscrimination.

Thus, in my opinion the legal ramifications relating to weight and appearance discrimination is only beginning to emerge.  Advocates for weight challenged individuals have not been as prevalent as advocates for other groups, but I see that as a rapidly changing dynamic.  Furthermore, legislators are more frequently being pushed to consider issues of personal appearance and weight discrimination.  My crystal ball predicts that within the next ten years, this area of law will likely have spread to a meaningful number of state and municipal statutes and ordinances.   Stay tuned.

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