Weight Bias Laws: Tipping the Scales against Prejudice?
Weight discrimination is illegal one state, Michigan, and six U.S. cities. But has making weight or size a protected class made any difference?
From the Rights Stuff Newsletter, Summer 2010
The experience with enforcement
In Urbana, Illinois, for more than 18 years it has been illegal for an employer to discriminate against people who are overweight. That's the combined tenure of Todd Rent, the Urbana human relations officer who enforces its anti-discrimination laws, and the person who held the job before him. The same city ordinance that prohibits weight discrimination also protects other aspects of physical appearance.
If you think that in 18 years, Urbana's enforcement agency would have seen a few charges of weight discrimination, you'd be wrong. In fact, there have been no such charges.
"Up until this year, we have not any personal appearance charges, at least that I know of," says Rent. He has been on the job for three years, but checked with the individual who was the city's human relations officer for 15 years before him, and she could not remember any either. The city ordinance is more than 18 years old, but records going back that far are not available.
The experience in Urbana appears typical of the few jurisdictions that have made weight, size, and/or physical appearance a protected class. With the exception of San Francisco, which might see three or four charges of weight discrimination in a given year, places where weight discrimination is illegal typically get one such charge in a year — or none.
There are only six cities in the U.S., and one state — Michigan — where weight discrimination is against the law. Madison, Wisconsin is another of those cities, and its ordinance prohibiting discrimination based on "physical characteristics" (including weight) has been on the books since at least the mid-1970s. But despite the fact the law has been around for more than 35 years, "We haven't had a huge number of cases," says Cindy Wick, a Madison Department of Civil Rights' Executive Assistant.
An employee at a Michigan Hooters charged that the eating and drinking establishment violated the state's civil rights law when it allegedly told her she had to lose weight to improve her looks, or be fired.
When an allegation of weight discrimination is brought to the attention of Madison's civil rights department, the allegation is usually part of a larger charge of discrimination that might also involve another protected class, such as race or gender. Rarely is a charge filed on the basis of weight, size, or physical appearance discrimination alone — in Madison, or in other cities that protect it. This year, Urbana finally saw its first personal appearance charge in decades, in a case that did not involve weight, but clothing and hairstyle, and also involved sexual orientation. The case concerns "a young lady who has had some static at her job and some disciplinary action taken based upon what the company indicated was her pants and her hairstyle," says Rent. "She suspects and I suspect also that the underlying root is a concern regarding her sexuality — or concerns about customers' perceptions of her sexuality, and how her personal appearance may impact that."
In Michigan, weight and height discrimination are both illegal, but the issue rarely surfaces. "We don't get many cases at all. If we get one a year, that's a lot," says Sylvia Elliott, Director of the Michigan Department of Civil Rights. Michigan law allows employers to apply to the Michigan Department of Civil Rights for BFOQ status, if they believe, for example, that being under a certain weight is a bona fide occupational qualification (BFOQ) for a certain position. "The last BFOQ on weight that I remember was probably nine years ago," says Elliott.
But finally, earlier this year, Michigan encountered one weight discrimination case that attracted national attention: An employee at a Michigan Hooters charged that the eating and drinking establishment violated the state's civil rights law when it allegedly told her she had to lose weight to improve her looks, or be fired. When Hooters allegedly placed her on probation for failing to drop those pounds, she resigned and filed a lawsuit.
"We don't get many cases at all. If we get one a year, that's a lot."
Elliott says she can't comment about the Hooters case, as it is still open. But while this is the first case involving weight discrimination her department has seen for a while, charges that involve how a person — particularly a female — looks, and whether they are considered attractive, have come to her attention before. "We've had cases involving say, your strip clubs, where they may want all their waitresses to be blonde or to have a certain appearance. So it's not really new, and generally, I can say that in most cases, we are looking at what are the essential functions of the job. And then we go from there."
Then there is San Francisco, where weight discrimination cases are hardly common, but at least more prevalent than elsewhere. Since 2000, weight and size (including height) have been protected by city ordinance in employment, housing and public accommodations. That was the year the city's Board of Supervisors held a hearing, and people showed up to testify that they had not been hired, or had been fired, because of their weight or size. "The testimony was compelling enough, to where weight and size were then added as protected categories," explains Nadia Babella, Coordinator of LGBT, Housing, Employment and Public Accommodation Complaints for the San Francisco Human Rights Commission.
"She was a little girl, and they wouldn't even accept her into their classes because, they said, eventually we are going to want you to do performances, and you don't look right for the performances."
Babella can name a number of interesting cases that have come before the commission, including one currently under investigation: At a San Francisco shop that serves refreshments (she prefers not to disclose the name of the business), a waitress was allegedly fired because a customer disapproved of her looks. The customer had sampled the store's product, then posted a negative review on a consumer web site. In his review, he also asked the question, "Why do you have a 'fat girl' working in a health food place? That just goes against the mission of the place!" A few days after the reviewer labeled her a "fat girl," the server was fired. "They said it was because she was coming to work late," Babella said. "So we have to investigate."
In another San Francisco case that was filed a few years earlier, a ballet company allegedly refused to allow a young girl to enroll in its classes, because she was overweight. "She was a little girl, and they wouldn't even accept her into their classes because they said then eventually, we are going to want you to do performances, and you don't look right for the performances."
The ballet company probably had the right to choose whomever it wanted, or didn't want, for its performances, the commission decided. "In the field of art, you are allowed a BFOQ — if a role calls for an Asian man, you could say we only want men and we only want Asians." But the classes were another matter. "We said you can't tell this little girl she can't even be in the class — you can't deny somebody because of their weight."
But perhaps San Francisco's most widely reported weight discrimination case involved a 240-pound, 5-foot-8 aerobics instructor who was initially rejected by Jazzercize because she was not considered fit enough. "Jazzercise sells fitness," instructor Jennifer Portnick had been told in a rejection letter, and a Jazzercise applicant must "look leaner than the public. Portnick filed the first-ever complaint under San Francisco's then new law. "She'd been working for Jazzercise for a long time, and she was fit," Babella explains. "She said, 'given my body and who I am, my genetics, this is what fit looks like for me." Jazzercise ultimately settled the case.
Why there aren't more cases
If discrimination based on weight is as prevalent as advocates for acceptance of people who are considered overweight suggest, one might expect more cases in those few jurisdictions that have included weight, size, or physical appearances as a protected class. One reason more charges aren't brought in Madison is that not everyone who might be a victim of weight discrimination knows it's illegal in that city, says Wick. "We do everything we can think of to make people aware," but there is no money to pay for an ad campaign, and budget cutbacks have reduced the ability of the Madison Department of Civil Rights to make people aware of their rights, she says.
Despite a few high-profile cases, attitudes about weight are changing slowly, and most are still unaware of the city's ten-year-old weight discrimination protections.
Although the Hooters' case has focused attention on Michigan's weight discrimination law, both the public and employers are often unaware that weight and height are protected characteristics in Michigan, according to Elliott. "I don't think most employers know about the law," Elliott says. Her agency also monitors businesses seeking state contracts for $100,000 or more to ensure that they are in compliance with state civil rights laws. They are often surprised when the Michigan Civil Rights Department tells them their policies must also conform with the state's additional weight and height protections.
In San Francisco, despite a few high-profile cases, attitudes about weight are changing slowly, and most are still unaware of the city's ten-year-old weight discrimination protections, says Babella. "This is an awareness, in certain, small circles," she says. "But not in the way, for example, that there is transgender awareness. We started working on that issue in the mid-90s, and now transgender rights are just so taken for granted."
But perhaps the major reason more cases aren't filed is that many who are overweight have become so accustomed to discrimination that they expect it, and don’t believe much can be done about it. "If they have a serious weight problem, they have probably encountered that kind of discrimination — they have been treated differently — all of their lives, and don't think that a government agency is going to be sympathetic," says Madison's City Wick. In San Francisco, Babella says, "I think most people just kind of feel like, that's how life is."
Some may also feel that being overweight and the discrimination they experience as a result is somehow their own fault, a message they may have also heard repeatedly. "Speaking as an individual who has carried around some extra weight almost all of my life, I know that weight is one of those things that people aren't as receptive to," says Wick. "They look at it as something that you have caused, rather than something that you're born with, like your race or your sex."
"If they have a serious weight problem, they have probably encountered that kind of discrimination — they have been treated differently — all of their lives, and don't think that a government agency is going to be sympathetic."
When individuals who experience weight discrimination do learn that it's illegal and they may be able to file a charge, the stigma over obesity — exacerbated by what some describe as a war against fat in the midst of an obesity epidemic — may keep some from exercising their rights.
When businesses learn that they are facing a charge of a type of discrimination they may not have known was illegal, some may plead ignorance, and may seek to settle the charge quickly. "Frequently we'll hear from employers, 'I had no idea that that was against the law," says Wick. "The system is fairly forgiving of that kind of defense — it's not going to get you out of trouble, but you are not likely to pay a big fine or huge compensation, if you're willing to correct things — if you're willing to reemploy the individual or eliminate the policy."
But others who do business in those few jurisdictions that protect weight, size, or physical appearance complain that such protections are detrimental to a state or city's business environment. "One of the things I know Hooters said is, 'that's why it's so difficult to do business in Michigan, because we have these kind of protections in place,'" says Elliott. She disagrees, and points out that businesses can ask for a exemption, in advance, if they believe weight or size is a legitimate BFOQ for a particular job. "Or if you decide this is going to be your policy and you feel strongly about it, just know that you're going to have to defend it."
It may be no accident that those cities that have prohibited weight discrimination tend to be near colleges, and have a reputation for being politically liberal. In such an environment, employers may grumble about the law, or a civil rights department's handling of a particular case, but are reluctant to mount a direct challenge. "I think there are some who would say that Madison is out there to the left pretty far, and in this economy, perhaps it's time for a change," says Wick. "But I think most employers are hesitant to criticize our civil rights law openly, so we haven't seen any significant attempts to repeal any portion of our ordinance other than the sexual orientation coverage. That was quite a long time ago, and of course, that failed."
"We don't have a huge corporate culture here, and the issue of body image and all that tends to be a staple of that culture."
In another liberal college town, Urbana, human relations officer Rent believes that the city's major employers do not oppose the ordinance protecting personal appearance, and are less inclined to discriminate based on weight or appearance than in other localities, as a matter of economic necessity. Urbana's major employers (other than the University of Illinois) include a hospital and two factories; small cafes, grocery stores and clothing shops provide the rest of the jobs. "We don't have a huge corporate culture here, and the issue of body image and all that tends to be a staple of that culture," says Rent. His observations suggest there is likely to be less discrimination on the factory floor than in the executive suite, at least when it comes to the issue of weight. "I don't think that you're going to see it (weight discrimination) as much in a more industrial, blue collar setting as you are in the corporate setting."
And at Urbana's University-affiliated hospital, economics also mitigates against discrimination. "I come from a hospital environment, and there is such a shortage of most of the key positions in hospitals, that I can't imagine anyone being turned down for a position based upon their weight," says Rent.
There may be prejudice. In any environment, there may be those who don't like people who are overweight, who believe "it's their own fault," who harbor hostility and embrace stereotypes about weight and obesity. But these negative attitudes rarely find expression in adverse action, at least in Urbana and at its major employers, Rent believes. "It's not because people are better here, or more enlightened." It's more an issue of demographics and job availability, he explains. "If you've got a good person, you can't afford to not hire them for a particular position, or throw them away, based upon their weight."
Note: The information in this section appeared in the Summer 2010 edition of the Department of Human Rights newsletter, The Rights Stuff. The newsletter includes additional material related to this topic.