7 Ways to Prove Weight Discrimination

Obesity may be an official disease, but how do you prove discrimination?

Overweight security guard with a walkie talkie
Getty Images
In June, the American Medical Association declared that obesity is officially a disease. I've written in the past about weight discrimination and whether it's covered under the Americans With Disabilities Act. The big question is whether, now that disability has been declared a disease, the overweight will find more legal protection under discrimination laws.

Well, the lawsuits are already flying. One law firm reports that a client has been sued for weight discrimination, using the AMA's declaration in support of the claim that weight discrimination is now covered under the Americans With Disabilities Act. I'm sure there are others being filed around the country.

So, how do you prove illegal weight discrimination? Here are 7 things you'll need to be able to prove if you want to sue for weight discrimination:
  1. You have a disability: You'll have to show that your weight is such that it significantly limits or restricts a major life activity, which could include things like hearing, lifting, seeing, speaking, walking, standing, breathing, performing manual tasks, concentrating, caring for yourself, thinking, learning or working. If you're a little bit overweight, it's probably considered a "minor impairment" and not covered, but obesity should very clearly be covered now that the doctors have weighed in.
  2. Your employer is covered: Like most discrimination laws, the Americans With Disabilities Act covers employers with 15 or more employees. If your employer is smaller, you might have to look at your state laws and local ordinances for help.
  3. Regarded as disabled or history of disability: Even if you aren't substantially limited in a major life activity, you're protected if your employer regards you as disabled. If your employer thinks you're obese, calls you "fatso" or tells you that you need to lose weight, you may be covered even if you aren't obese. If you used to be obese but lost weight, you are covered due to your history of disability if your employer discriminates against you due to that history. If, for instance, they won't give you an assignment because they assume you'll gain the weight back, you may be covered.
  4. Direct evidence: Comments about your weight are considered direct evidence of discrimination. If your supervisor or someone with decision-making authority nicknames you "Fats," then you're fired or denied a promotion, the comments would be evidence they discriminated against you.
  5. Different treatment: If you're treated differently than non-obese coworkers under the same circumstances, that's also evidence of discrimination. Excluding you from business lunches, denying you a promotion when you're the best qualified, or writing you up for doing the same things your thin coworkers do could be evidence of discrimination. You can also show that your obese coworkers are treated badly along with you, and that's evidence of discrimination.
  6. Harassment: If supervisors or coworkers mock you or exclude you due to your weight, that could be illegal harassment. You have to report this to HR under the employer's harassment policy and give them an opportunity to correct the situation. If you don't report it under their policy, you may be giving up your right to sue for harassment down the road.
  7. Accommodations: Your employer is required to grant reasonable accommodations that will allow you to perform all the essential duties of your job. If you need a sturdier chair, wider desk, a cane to assist you in walking, or light duty, your employer must grant the accommodation unless they can show it would be an undue hardship on them to accommodate you. For a large employer, showing a hardship is much more difficult than for a mom and pop shop.
If you think your employer or a potential employer has discriminated against you due to your weight, you'll have either 180 days or 300 days from the date of discrimination, depending on your state, to file a charge of discrimination with EEOC. That's a requirement before you can sue. When in doubt about your rights, it's best to contact an employment lawyer in your state to get advice before you file a charge of discrimination or discrimination lawsuit.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or in our upcoming live video chat.
Donna Ballman

Donna Ballman

Contributor

Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. 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 representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

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14 Comments

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theframingone

if you are fat then you can be called fat , if you don t like it get off you fat as* and lose some weight oh thats right it is a disease nowadays , I call it lazy for most of you , yes some may have a glandular issue or some under lying cause but for the most part fat people are fat by choice so deal with it , put down the fried chicken leg and go for a walk

October 15 2013 at 3:25 PM Report abuse -2 rate up rate down Reply
sylvabugg2

Discrimination and hatred toward the obese is not only allowed but embraced in this country. I find it hypocritical in the extreme that people scream out against racial, sexual and every other kind of discrimination but see nothing wrong with bringing it to people's attention that they are fat and therefor disgusting. What is truly disgusting is the lack of compassion that is steadily growing among people in this country. We all have our demons.

October 15 2013 at 1:11 PM Report abuse +1 rate up rate down Reply
Jerry

Just think if that fat person is also gay, that has to be worth millions. Looks like you can sue for anything these days. I can see it now, person wins millions for being fat, drops dead the day they are suppose to collect. Karma.

October 15 2013 at 12:57 PM Report abuse rate up rate down Reply
heldt666

Only if you are fat.
Buy a mirror.

October 15 2013 at 12:13 PM Report abuse +1 rate up rate down Reply
pikappa77

Sure my boss can call me fat.... and call him an ambulance.

October 15 2013 at 11:56 AM Report abuse rate up rate down Reply
1 reply to pikappa77's comment
billv0164

even WITHOUT getting it recorded or in writing, right?

October 15 2013 at 12:04 PM Report abuse rate up rate down Reply
jmasiulewicz

The only category of the ADA that can be voluntarily acquired. A disability by choice. Disgusting.

October 15 2013 at 10:30 AM Report abuse +3 rate up rate down Reply
1 reply to jmasiulewicz's comment
sylvabugg2

Really? So getting lung cancer from smoking is not voluntary? Someone forces you to smoke. Come on now!

October 15 2013 at 1:12 PM Report abuse rate up rate down Reply
scottee

can anyone say TORT REFORM?

October 15 2013 at 10:06 AM Report abuse rate up rate down Reply
1 reply to scottee's comment
Cheryl

Did you mean strawberry torte? Oh nooooooooo......

October 15 2013 at 2:37 PM Report abuse rate up rate down Reply
rkeeeballs

If it looks like a fat slob....it is !

October 15 2013 at 10:01 AM Report abuse +1 rate up rate down Reply
mckdarren

Yeah, let's encourage more lawsuits, Donna, instead of encouraging fat people to get control of their lives and health. You're a disgrace.

October 15 2013 at 9:16 AM Report abuse +4 rate up rate down Reply
1 reply to mckdarren's comment
sylvabugg2

Do you smoke? Then why don't you shut your pie hole and take control of YOUR own health and quit!

October 15 2013 at 1:13 PM Report abuse +1 rate up rate down Reply
1 reply to sylvabugg2's comment
Cheryl

Golly Beaver-Did mckdarren say anything about smoking? For all you know he/she might be a hard core drill instructor. LOL

October 15 2013 at 2:38 PM Report abuse rate up rate down

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