7 Ways to Prove Weight Discrimination
Obesity may be an official disease, but how do you prove discrimination?
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 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’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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