Weight Discrimination on the Rise

We live in a diversity-conscious society where the majority of American adults are overweight or obese. However, studies have found that weight discrimination is growing. Numerous studies have measured weight discrimination among men and women as well as pay bias related to weight.
A 2010 study headed by Timothy A. Judge of the University of Florida found there was a strong pay bias in favor of thinness in women. Women who weighed 25 pounds less than the norm of their group earned an average of $15,572 more per year, where those who weighed 25 pounds more than the norm earned $13,847 less than average.
Another study, “Weight Discrimination and the Glass Ceiling Effect Among Top U.S. CEOs” found there was a glass ceiling effect for weight. Looking at photographs of CEOs from Fortune-ranked companies, it was estimated that overweight and obese women were considerably underrepresented with 22% overweight and 5% obese. This did not correlate with the career advancement in men. Overweight men were overrepresented among the CEOs.
Currently no federal laws prohibit discrimination on the basis of weight but individuals have used other nondiscrimination laws as the basis of weight discrimination claims. Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex or national origin, have been used in cases where weight standards are applied differently or have an adverse impact on a protected class.
Some individuals have used the Americans with Disabilities Act (ADA) in weight discrimination claims. However, barring an underlying physiological disorder, being overweight or obese generally does not qualify as an ADA-protected disability.
Nevertheless, overweight or obesity does not put an individual into a protected class, unless the condition resulted in a substantial limitation of a major life activity.
Employers can use employment criteria that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQs). Determine if an individual really needs it to perform the necessary functions of the job. For jobs that require a certain level of physical fitness, ask an applicant to demonstrate their ability to perform that job function rather than imposing specific height or weight requirements.
Employers can require employees to meet certain standards of grooming and dress but requiring them to be a certain size could lead to discrimination charges. Regardless, wise employers should avoid weeding out qualified individuals based on their weight or any other personal characteristic.
For more information on protecting your business from employment discrimination and other employment practice liability claims, please contact us.