Seyfarth Synopsis: ‘Tis the season of food temptation: the average American gains at least five pounds between Thanksgiving and New Year’s Day. California employers need to beware of weight discrimination in the fluctuating legal landscape, and how to handle bias in hiring and the workplace.

A 2008 study from Yale University found that weight discrimination, often referred to as “size discrimination,” occurs in employment settings and daily interpersonal relationships as often as race discrimination: it is one of the top charges filed with EEOC, and is reported by women about twice as often as men. Even more surprising, according to a study by the Obesity Action Coalition, weight discrimination increased by 66 percent between 1995 and 2005, and it now appears to affect 7-12 percent of the general population. In the continuously changing legal landscape, discrimination against the differently sized is weighing in—what does that mean for California employers?

“Working Out” the Kinks: ADA vs. FEHA

Weight discrimination is a serious problem affecting millions of U.S. employees. Overweight people experience job-related discrimination in hiring, wages, and the terms and conditions of employment. While federal and state laws contrast considerably on the issue, most cases of weight discrimination are argued as a matter of disability discrimination or perceived disability discrimination.

Courts generally have been unsympathetic to claims that overweight plaintiffs have brought under the ADA. To qualify as “disabled” and thus protected under the ADA, a plaintiff must have a present “physical or mental impairment” that “substantially limits” one or more “major life activities,” or must have a record of such impairment, or must be regarded or “perceived” as such. Differently sized individuals have qualified as disabled where they have been medically identified as “morbidly obese.”

As described in the section immediately below, the FEHA provides an extra helping of protection: it breaks with the ADA by liberalizing the test for establishing perceived disability. The FEHA defines disability as:

  • A physical or mental impairment that limits [even if it does not “substantially” limit] one or more of a person’s major life activities; or
  • A record of having, or being perceived as having, a physical or mental impairment.

The Weight is Over: Interpretations Under The FEHA

In 2000, the California Legislature, in AB 2222, affirmed that it intended the FEHA to surpass the ADA in providing wide and strong protections to California employees with disabilities. The Legislature amended the FEHA’s definition of disability in a critical way: To proceed on a disability claim, a plaintiff need only show that the impairment limits, rather than substantially limits, a major life activity. Therefore, a FEHA plaintiff need only show that the employer regarded him or her as having a condition that made working one particular job or task more difficult in order to qualify, and if being over (or under) weight is based on a medical condition, that may count. Enterprising plaintiffs’ lawyers may use this part of the FEHA to argue weight discrimination has affected their clients. See Cassista v. Cmty. Foods, Inc. and Hallstrom v. Barker.

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Note also that California law, in contrast to the ADA, covers “medical conditions.” This provision may benefit a weight-discrimination plaintiff because it defines a “medical condition” to include genetic characteristics (any scientifically or medically identified gene or chromosome, or combination or alteration thereof, or inherited characteristics that are known to cause or increase the risk of developing a disease or disorder in a person or his or her offspring and that is presently not associated with any symptoms of any disease or disorder). Cal. Govt. Code § 12926(i). An overweight or underweight plaintiff thus might cite medical evidence to claim a protected “medical condition.”

While the FEHA thus far has not explicitly identified weight as a protected status, other states and certain California cities (San Francisco and Santa Cruz) have already made that leap.

Tipping the Scale: Best Practices For The Employer

Given the robust protections provided by the FEHA, California employers must proceed cautiously. Here are some tips to consider:

  • Examine existing processes and policies on disability, discrimination, and complaint practice.
  • Do not make assumptions about what job functions overweight or underweight employees can and cannot accomplish.
  • Treat requests for accommodation with sensitivity, keeping in mind that the individual might be entitled to protection under the FEHA for tasks that cannot be accomplished due to weight-related issues.
  • Improve policies that mandate the courteous treatment of employees, regardless of personal appearance.
  • Educate employees—especially supervisors—on what is appropriate conduct toward differently-sized employees, including bullying.
  • Warrant that participation in proactive “wellness” programs is voluntary and private.
  • Review job descriptions to ensure that any weight requirements are closely related to the essential requirements of the job.

Workplace Solution: Understanding the duties and responsibilities of employers to prevent “weight watching,” and to provide an accessible workplace, is critical. In an unsettled cultural and judicial landscape, more Americans are paying closer attention to weight discrimination and deeming it unacceptable. As policymakers consider adding “weight” to the emergent list of discrimination-protected classifications, employers must stride carefully.