weight discrimination anyone?

[Guest guest]

F Y I

J. Pedersen DC

Lightbulb *Discrimination Over Your Weight*

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Evidence of discrimination is found at virtually every stage of the

employment cycle, including selection, placement, compensation,

promotion, discipline and discharge, according to a research review by

Mark Roehling, a professor in the Department of Management, Western

Michigan University. In addition, the bias extends to assessments of

overweight individuals in their various work-related roles both as

subordinates and co-workers. Of his findings, Roehling said, " Overall,

the evidence of consistent, significant discrimination against

overweight employees is sobering. "

Roehling reviewed 29 research studies of employment discrimination that

included both laboratory and field studies. He found that:

1. Overweight persons were subject to discrimination in employment

decisions based on body weight.

2. Overweight persons were frequently stereotyped as emotionally

impaired, socially handicapped and as possessing negative

personality traits.

3. Wages of mildly obese white women were 5.9 percent lower than

standard weight counterparts; morbidly obese white women were 24.1

percent lower, according to two studies. In contrast to females,

the wages of mildly obese white and black men were higher than

their standard weight counterparts. Men only experienced wage

penalties at the very highest weight levels.

4. " Studies assessing the effect of both employee weight and other

suspected bases for discrimination (sex, specific disabilities,

etc.) provide evidence of the relative level of weight-based bias;

they suggest that weight-related bias may be greater than that

associated with other characteristics.

For example, Pingitore et al's (1994) study manipulating applicant

weight, applicant sex and job type, found that applicant weight

explained 34.6% of the variance in hiring decisions. In contrast

10.6% of the variance was explained by the sex of the applicant.

Brink (1988) examined the potential effect of applicant weight,

age, sex and race on ratings of candidate acceptability in a

laboratory setting. Overweight candidates were rated significantly

lower, but none of the other manipulations has a significant

effect. A final example is provided by Kennedy and Hormant's

(1984) investigation of the effect of social stigmas on decisions

regarding employee discharge. They found that participants

displayed more negative attitudes toward overweight employees than

ex-felons or ex-mental patients. "

5. Michigan is the only state that prohibits employment

discrimination on the basis of weight. In studies conducted in

settings unrelated to employment, Roehling found some evidence

that overweight women were evaluated more negatively than

overweight men. Although the findings were not consistent,

Roehling stated, " Where an interaction is found, overweight women

are evaluated more negatively than overweight men. " He also found

that overweight persons are denigrated by doctors, nurses, peers,

small children and their parent(s).

Wages and Benefits

Several studies have found that women with obesity earned less than

non-obese women.

In a study by Rothblum and colleagues, of persons who were 50 percent or

more above their ideal weight, 26 percent reported they were denied

benefits such as health insurance because of their weight and 17 percent

reported being pressured to resign or fired because of their weight.

Legal Issues

The Civil Rights Act of 1964, (Title VII, 42 U.S.C. §2000 et seq.)

established basic federal law on employment discrimination. It does not

identify weight as a protected characteristic, and as a result does not

provide direct protection for obese individuals who have been

discriminated against by their employer due to their weight.

The differential application of weight standards, formal or informal, to

members of protected classes may constitute disparate treatment

discrimination.

In Gerdom v. Continental Airlines Inc., 692 F2d. 602, 30 FEP 235 (9th

Cir. 1982; en banc), the court determined that the airline's weight

restriction program treated employees differently based on sex because

it was designed to apply only to females, and " it was not merely

slenderness, but slenderness of female employees which the employer

considered critical. " The airline argued that it had a competitive

strategy featuring attractive flight attendants and that a slender

female was a bona fide occupational qualification (BFOQ). The court

rejected this argument holding that customer preference unrelated to the

ability to do the job cannot justify discriminatory policies.

Disparate treatment may also be found if weight policies designed to

apply to all groups are enforced at a significantly higher rate against

a protected group. Union of Flight Attendants v. Pan American World

Airways, Inc., 50 FEP 1698 (N.D. Cal 1987)

An employer's use of formal or informal weight standards may involve

illegal discrimination if, though neutral on its face, the rule has a

significant disparate impact on a protected class. In other words, if a

claimant established that the weight rule was having an adverse impact

on African Americans, Title VII would require an employer to justify its

weight rules by showing that it is job-related and consistent with

business necessity.

*Rehabilitation Act and the Americans with Disabilities Act (ADA)*

The Rehabilitation Act and the ADA provide protection against employment

discrimination. Under both acts, a person must establish that he or she

is an individual with a disability within the meaning of the acts. This

includes anyone who has a physical or mental disability that

substantially limits one or more major life activities of the

individual, a record of such impairment or who is regarded as having

such impairment. *Equal Employment Opportunities Commission (EEOC)*

EEOC regulations define " major life activities " as " functions such as

caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning and working. The regulations require that

the 'working " limitation requires evidence of being significantly

restricted in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person

having comparable training, skills and abilities. The inability to

perform a specific job does not constitute a substantial limitation in

the major life activity of working. The EEOC regulations implementing

the ADA explicitly excludes height or weight within normal ranges and

are not the result of a physiological disorder. According to the

regulation, obesity will considered as a disability except in " rare

circumstances. " (29 C.F.R. §1630.2)