Best Ohio Disability Discrimination Lawyer Answer: Is being overweight a protected status under employment discrimination laws? What protection does Ohio law offer for obese employees? Should the law be changed to protect overweight employees? Fired for being fat? Can My Boss Fire Me Because I’m Overweight?
As our employment discrimination attorneys have previously discussed the answer to whether a terminated employee who is fired for being overweight can bring a wrongful termination claim is complicated. (See Is High Blood Pressure A Disability?; and The Scope Of The Americans With Disabilities Act Amendments Continue To Get Better For Obese Employees.)
It’s complicated because federal laws like the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 do not include obesity or overweight individuals as a protected class. Right now, Michigan is the only state that has laws that protect employees from being fired because they are overweight. For everyone else, it’s a case by case determination to see if an employment discrimination attorney can argue that the reason a person was fired falls into another protected class.
There are a few different scenarios to consider when determining whether a person was unlawfully discriminated against. First, it’s important to see where the employee lives. If they live in Michigan, they’re in luck! This case out of Michigan demonstrates the new trail blazing laws that Michigan put in place to protect its citizens. A few states are considering implementing similar statutes, but for right now Michigan is the only state that explicitly lists weight as a protected class. Michigan’s law is so great because it recognizes that an employee’s weight shouldn’t be a factor that employers consider in employment decisions. Like other anti-discrimination laws, this law focuses on the ability of an employee to perform the work – can you do the job?
Elizabeth DeLorean was one of the first employment discrimination claims pursued under the Michigan law. Elizabeth worked for Coach, a luxury handbag retailer as a manager when she was terminated. Elizabeth began working for Coach in 2002 as an assistant manager. She was promoted to store manager in 2007. When she first started working for Coach, she was petite. She maintained her small figure until 2010. The lawsuit did not elaborate the exact reasons for her weight gain other than she was “experiencing difficult times.” Who doesn’t? Life fluctuates so much over the years, it’s understandable that at different points in her life, Elizabeth had a different physique. Over the course of three years she gained over 100 pounds. While she gained weight, her supervisors encouraged her to take synthetic weight loss pills and join Weight Watchers. They constantly made comments to Elizabeth about her weight gain and put her down for being fat or obese. During a performance review in 2012 her supervisor asked her, “What happened to the Elizabeth that would bring in Lean Cuisine for lunch every day?” Honestly, what is wrong with people?
But the weight loss suggestions grew in intensity. In 2012 Elizabeth asked for time off work to attend a weight-loss seminar. Her supervisor responded with, “why don’t you just go ahead and have surgery?” In November 2012, she was terminated. When she asked why she was terminated her supervisors told her that her “weight was a factor.” Luckily for Elizabeth, since she is a Michigan resident she belongs to a protected class because of her weight. This case settled, so it’s impossible to say what amount of money Elizabeth received from Coach. At least she got something! Most employees would not be as successful as Elizabeth in their claim against an employer for weight discrimination because 49 other states do not offer the same protection.
There are other ways for employers to fire employees based on their appearance in Michigan. Unfortunately, models aren’t protected from weight discrimination under the Michigan discrimination law. It is not illegal for an employer to hire a sales associate and designate them as a “model” so that it can fire that person if their appearance does not conform to their desired look. The notorious “Abercrombie Dress Code” is a shining example of this. Abercrombie can fight off many different discrimination claims because they list their employees as models even though they act and function as sales associates. The model designation goes a long way to protect against discrimination claims. This is because employers who hire models have the right to control the “look” of the models they wish to hire. Abercrombie famously only hires attractive models to complete the “look and vibe” of their various locations. A quick Google search will turn up dozens of employees who claim that they were fired from Abercrombie because they changed their hair style or gained a little bit of weight. However, given their consistent market downturn over the past few years, it’s possible that consumers have had enough of their barely camouflaged discriminatory practices. And, as our attorneys have blogged about, this argument ended up costing the company in the long run. (See Can I Sue My Employer For Not Accommodating My Religious Dress? I Need A Lawyer!; Can My Boss Tell Me Not To Wear Religious Articles Of Clothing At Work? Best Lawyer Update; How Do I Oppose Religious Requirements At Work? Best Attorney Answer).
Even if employers can legally fire employees because of their appearance, company policies aimed at curbing overweight employees could still lead to a discrimination claim. For example, in 2010, Whole Foods Stores contemplated rolling out a new discount incentives plan. The basic concept of the proposed incentive plan was that that employees who scored better on health exams would get better discounts in the store. The examinations graded employees on things like BMI, whether an employee smoked, blood pressure level and cholesterol levels. Not surprisingly, this plan was met with a lot of criticism. Not only because the plan essentially punishes the larger employees but also takes away resources from those who need it most. This policy had great potential to be discriminatory because it would treat certain employees less favorably than other employees based on a protected status under the Age Discrimination in Employment Act. High blood pressure can be protected under the ADA if it interferes with a major life activity.
In Ohio, it requires some clever lawyering to proceed with an obesity-based disability discrimination claim. Ohio is not plaintiff friendly for employment discrimination claims based on obesity. The obesity claim must be attributed to some specific physiological condition. Under the ADA a physiological impairment is: any physiological condition, cosmetic disfigurement, or anatomical loss affective one or more of the following body systems: neurological, musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; ski and endocrine. (See Is Alcoholism A Disability Under The ADA? – Call The Right Attorney; Is It Wrongful Termination To Fire Disabled Workers?; and Can My Boss Fire Me Because He Thinks I’m Disabled?).
Another scenario in which our attorneys could bring claim is where only overweight women are targeted at work or only overweight men are targeted at work. Our employment discrimination attorneys would bring a gender/sex discrimination claim because men and women in the workplace were not held to the same standards. This scenario could happen in almost any type of work environment. A manager, supervisor or the owner of the company that you work at could judge overweight women more harshly than overweight men and look for excuses to fire them. If the manager is treating one gender differently than another a gender discrimination claim is possible. But even so, this solution does not address the underlying problem that our laws are ill-equipped to handle. According to Rudd Center for Food Policy & Obesity, more than two-thirds of Americans are now overweight or obese. Right now, in Ohio if an employee is terminated purely because they are overweight and no other reason, that’s totally fine. That’s a big problem because there is still discriminatory behavior in the workplace that is not being addressed.
“There are several decades of research evidence demonstrating weight bias in the context of employment, and what we see is evidence of bias at essentially every stage of hiring and employment cycle.” –Dr. Rebecca Puhl, deputy director of the University of Connecticut’s Rudd Center for Food Policy & Obesity.
A recent survey asked 500 hiring professionals, if they’d consider hiring an overweight woman. Only 15.6% of them said that they would, and on top of that one in five characterized an overweight woman as “lazy.” This is probably due to the societal impression that those who are overweight are choosing to be fat because they are lazy or sloppy. But how could someone’s BMI be indicative of their work ethic? That same study revealed that overweight women are more likely to be perceived as unprofessional when compared to non-overweight women. The first time our employment lawyers read that statistic, they were a little shocked. Work ethic is one thing but how could someone’s weight EVER indicate whether they are or are not professional? It’s completely ludicrous. But studies like the those mentioned above demonstrate why the laws need to change to protect overweight employees.
There is a huge gap between the protections afforded under current law and our needs as a society looking in the future. The obesity epidemic in the United States is undeniable. However, solutions for this problem won’t happen overnight. There are much larger issues at play including portion sizes, marketing, how our food is grown and stored, American knowledge of nutrition and general attitudes around food—just to name a few. In the meantime, while America contemplates the best solution to help our overweight citizens, there are many hard-working employees who are discriminated against because of their weight. They are no less deserving of protection under the law than other recognized protected classes. Enough is enough.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040 to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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