Don’t Discriminate Because of Weight
NEWSLETTER VOLUME 2.8
|February 23, 2024
Don't Discriminate Because of Weight
Humans judge each other harshly based on looks. Sure, part of this is probably based on evolution and sexual attraction, but that is not a good reason to make an employment decision.
Civil rights laws like Title VII were designed to address immutable characteristics—things about us that we come with and can't or should not have to change. Sure, you can change your religion but employers generally can't make that a condition of employment. The big exception is employers who are essentially a church.
The same principles apply to our skin color, sexual orientation, physical gender, where we were born, and our physical size.
For example, My Beloved is very tall. There are only a few cars he can drive comfortably. I am short and sometimes can't see over the dashboard. Our relationship to space, furniture, airplane seats, doors, and what we can see out the window is very different because our physical perspective is so different. If you want to test this, give a small human a camera phone and let them take pictures. The ones of you will prominently feature the ceiling or sky.
Weight is simply an element of size. People are the size they are because that's how their bodies work. Our culture is so focused on looking thin that we harm ourselves to get there. If anyone could be thin by trying hard enough, believe me, they would. But not everyone's body is designed to be thin and some of us have medical conditions that make it impossible.
While weight, height, and some other forms of appearance may not be protected classes (yet), the principles behind evaluating employees based on their qualifications, experience, skills, and performance rather than what they look like still apply.
You don't know why people weigh what they do and it's probably none of your business. And if someone has a medical condition or other disability that causes weight gain or prevents weight loss, they may be protected under disability discrimination laws.
We need to get over our obsession with looks and appreciate people for who they are.
This is a nice discussion of where weight is a protected class and what employers need to know.
When you think of protections against discrimination in the workplace, the first things that come to mind are traditional characteristics such as race, color, religion, sex, national origin, age, and disability. However, in the coming years we could see discrimination based on weight added to that list.
Current Measures Against Body Discrimination
Currently, there is no federal law protecting employees from discrimination based on weight. However, one state, and a handful of cities, have implemented statutes that ban discrimination based on weight to ensure that people of all sizes and heights are given equal access to employment and, in some instances, housing.
Michigan is the only state that currently bans weight-based discrimination. Interestingly, Michigan implemented its ban on weight-based discrimination nearly a half-century ago in 1976. Since then, no other state has implemented its own anti-body discrimination statute.
However, some cities have enacted anti-body-discrimination measures including Washington, D.C.; San Francisco, CA; Santa Cruz, CA; Binghamton, NY; Urbana, IL; and Madison, WI.
Most recently, New York City joined this group of cities on November 22, 2023, by implementing a ban on height and weight discrimination. The new law prohibits discrimination based on actual or perceived height or weight of an applicant or employee, with some exceptions carved out- such as when height or weight are material to an employee or job applicant’s performance of the essential functions of the job, or where consideration of height or weight is reasonably necessary for execution of the employer’s normal operations. Such exceptions can be used as affirmative defenses to claims brought under the anti-body-discrimination statute.
For the first time since Michigan implemented its anti-body-discrimination law almost 50 years ago, Colorado is the next state expected to make discrimination based on height or weight illegal, in 2024. The new Colorado law would also apply to discrimination in employment and housing.
Conclusion
While this is still a new trend, employers should keep an eye out for legislation in their states concerning body discrimination. If employers catch wind of potential legislation in their state banning discrimination based on weight or height, they should consider reviewing their employee handbooks, employee training materials, hiring materials (including job postings, applications, and descriptions) and antidiscrimination policies to be sure that they can quickly include these new protected classes in their policies.
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