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Is it Legal for Employers to Discriminate Based on Weight?

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Breaking down an unfortunate gap in the anti-discrimination laws

Obesity is on the rise, both in the United States and globally. The COVID-19 pandemic accelerated what was already a long-term trend: Americans are gaining more weight than ever, which has implications for both public health and workplace discrimination.

Research has shown that overweight workers, particularly women, face significant challenges in the workplace. A 2011 study found that for every one-unit increase in body mass index (BMI), women’s hourly wages fall by nearly 2 percent.

And it’s not just income that’s at stake. Discrimination based on weight can have significant implications for workers’ health. A recent Bloomberg article told the story of a cable installer who got risky weight-loss surgery after being told he had to lose 100 pounds to return to work: “His bosses thought he was too heavy to use their ladder, and they wanted to keep the ladder.”

These stories highlight an unfortunate problem with our current anti-discrimination laws. In West Virginia and across most of the United States, discrimination based on weight is not specifically prohibited by law.

Both federal and West Virginia law don’t address weight discrimination directly

At the federal level, employers are prohibited from discriminating on the basis of race, color, religion, sex, pregnancy, gender identity, sexual orientation, national origin, disability, age (over 40), or genetic information, according to the EEOC.

The West Virginia Human Rights Act provides similar protections against discrimination on the basis of race, religion, sex, age, color, ancestry, national origin, blindness, or disability. Notably, neither federal nor West Virginia law prohibits weight discrimination as such. However, some types of weight discrimination could run afoul of laws against other forms of discrimination.

Under some circumstances, weight discrimination could be considered a type of disability discrimination under the federal Americans with Disabilities Act (ADA). However, federal judges have historically been hesitant to consider obesity per se a protected disability under the ADA. Still, if your weight is linked to a medical condition covered by the ADA, you may have a viable case.

As mentioned above, this type of discrimination tends to be gendered in nature: while overweight men can certainly be discriminated against, overweight women face significantly greater challenges. Women “experience it not only at higher levels, but also at lower levels of body weight,” said University of Connecticut professor Rebecca Puhl, who studies weight discrimination.

If an employer’s enforcement of an appearance or wellness policy affects women more than men, there may be a viable claim for illegal gender discrimination. Likewise, a pattern of comments on overweight women’s bodies could be considered a form of gender harassment or sexual harassment.

Talk to an attorney if you’ve been discriminated against at work

While not all forms of weight discrimination are illegal, the only way to know if your situation is legally actionable is to talk to an attorney. Klie Law Offices stands ready to stand up for workers and protect all your rights under federal and West Virginia law. If you’ve been discriminated against at work, contact our offices for a free and confidential consultation.

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