Is Weight Discrimination At Work Illegal?
No doubt about it: Record numbers of American workers are obese. By 2030, half of all American adults are expected to be obese, a new study by the Robert Wood Foundation finds. And many employers are biased against overweight workers, assuming that they're lazy or out of control. There's a correlation between obesity and unemployment.
It seems pretty clear that employers don't want to hire or promote overweight employees.
Isn't that illegal?
The answer is a big, fat maybe.
Under federal discrimination laws, weight is not a protected class, which means that, for the most part, your boss can refuse to promote you, can harass you, and can fire you due to your weight. However, there are some ways that you might be protected under the law if you are overweight.
Here are the top ways you might be protected against discrimination if you're overweight:
The Americans With Disabilities Act protects employees who work for employers with at least 15 employees from discrimination due to disabilities. While being moderately overweight isn't protected, you may be protected if you are obese. EEOC considers morbid obesity to be a protected disability. If your condition substantially limits a major life activity, then you may be protected against discrimination. Your employer may also have to grant reasonable accommodations for your disability, such as a sturdier chair, the ability to sit periodically, or other accommodations that won't cause the company an undue hardship. If you have mild weight gain due to a covered disability, then you're also protected against discrimination and harassment under this law.
Many times, women are expected to be slim but men aren't. If your employer is holding women to different standards than men (or vice versa) then they may be guilty of sex discrimination.
Family and Medical Leave
If you need medical treatment for a condition relating to your weight, you may be protected for days you miss work under the Family and Medical Leave Act. If, for instance, your doctor is monitoring your weight loss program, your high blood pressure, or your arrhythmia, you could be entitled to intermittent leave. That means you can get protected leave for each of your doctor's appointments, for up to a total of 12 weeks per year.
Need a weekly appointment? Your FMLA leave would cover a half day every week of the year and still have some time left over for additional medical needs. You must have worked at least a year and your employer must have 50 employees within a 75 mile radius of your work location to qualify. If you're hospitalized or need extended time off for your medical condition, you can get leave for up to 12 weeks total in the year. You can use both intermittent and continuous FMLA leave as your doctor requires.
State and Local Laws
There aren't many, but some states and municipalities have passed laws against weight or personal appearance discrimination.
Here Are Some Things That Aren't Protected:
Bullying and Harassment
No state in the union has passed a law against bullying, despite several attempts to do so in many states. That means your boss and co-workers can be jerks, bullies and can taunt you about your weight. However, if you are in one of the protected categories above, that all changes. You can't be harassed due to a disability, your gender, or for taking Family and Medical Leave.
There is no law against discrimination due to your appearance. Your employer can impose dress and appearance codes as long as they are applied equally. That doesn't mean men and women must wear the same clothing and have the same hairstyles, but there can't be appearance standards for women and not men, or vice versa. Appearance standards must accommodate religious requirements and disabilities unless the employer can demonstrate a business necessity for them. If your doctor says you must wear loose-fitting clothing, a heart monitor, or a medical alert bracelet, your employer probably has to grant you that accommodation.
The bottom line is that you have to be quite a bit overweight to have much legal protection. Until Congress or your state legislature passes a law, a third of Americans (soon to be half) will be disenfranchised.
Opponents of laws protecting against weight discrimination will argue that being overweight is a personal choice. As someone who has struggled with weight all my life, I'd dispute that being overweight is a choice. It's certainly not a choice that anyone I know would make. There's no group more reviled, more subject to openly being mocked and bullied, and more the victim of outright discrimination and hatred than the overweight. Watch any TV show and you'll see stick-thin actors treating even moderately overweight people like they have no human feelings.
Even if you believe it is a choice, we already have laws protecting certain personal choices, don't we? What's a more personal choice than religion? Yet we have laws protecting against religious discrimination. It's time to treat people with weight problems like they are human beings with dignity and basic human rights.
Do you have a problem with your employer? Do you have a question about your legal rights in the workplace? Email Donna Ballman, care of AOL Jobs. Make sure to include a description of your problem. Keep in mind that anything you include in your email could be reprinted and responded to publicly. It will not be confidential. Govern yourself accordingly.
Also note: Writing to Ballman at AOL does not create an attorney-client relationship. Ballman can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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