It wasn’t long ago when fat shaming and short shaming were socially normative. Society’s pendulum has since shifted in favor of body acceptance, regardless of one’s physical appearance.
The swing of the social pendulum is exemplified in labor laws protecting those who are overweight, shorter in height, racial minorities, LGTBQ, and other protected classes that were previously discriminated against. Though employers in certain lines of work, such as Hooters restaurants and adult entertainment clubs, give preference to applicants with a certain body type, it is generally illegal to discriminate based on weight and height when hiring.
The Collective Moral Compass Is Pointing in a New Direction
Times are changing to benefit those who do not align with traditional social and cultural norms. Though there will likely always be innate favoritism for those who are tall and skinny, it is generally illegal to discriminate based on such factors unless those factors are essential for job performance.
For example, it is legal for a basketball team owner to discriminate against shorter people who are incapable of succeeding on the basketball court simply because success in the occupation primarily depends on height. Moreover, it is legal for the owner of an adult entertainment business to discriminate against people who don’t fit their standards, as success in the occupation is determined by what the audience deems to be physically attractive.
However, if height and weight do not play a factor in one’s success within the occupational role, those characteristics are protected similarly to other classes, such as age, race, sexual orientation, and religion. Simply put, it is generally illegal for employers to reject job-seekers or discriminate against them after hire based on height and weight.
Height and Weight Discrimination According to the EEOC and ADA
The United States Equal Employment Opportunity Commission (EEOC) has explicitly stated that individuals who are of disproportionate weight and height may be provided with quasi-protection status as a class. However, it is up to the courts to determine if discrimination occurs. It is also up to the courts to determine if it is logical and fair to apply protection based on height and weight under the overarching umbrella of the “plus discrimination” concept.
Check the EEOC website, do some digging, and you’ll find a statement highlighting how pre-employment inquiries regarding weight and height must be sidestepped by employers. The logic in forcing employers to avoid inquiring about weight and height is that requiring the divulgence of such information limits the employment opportunities of those who might be deserving of open positions based on merit.
Height and Weight as Disabilities
Though few know it, dwarfism, meaning a short person or what the politically incorrect individuals of yesteryear referred to as “midgets”, is now considered a disability in the context of employment law. Therefore, refusing to hire an individual based on their egregiously short height has the potential to be considered discrimination based on disability.
The Americans with Disabilities Act (ADA) does not consider obesity to be a disability. However, there is a caveat to the ADA’s take on obesity. If obesity is the result of a medical condition, it has the potential to be considered a disability.
Height and Weight Have the Potential To Be “Essential” Job Requisites
Unless height and weight are considered requirements for the job, it is illegal to discriminate based on those characteristics. Several cities, including New York City, San Francisco, Washington, D.C., Madison, and Santa Cruz, have passed laws to ban discrimination based on weight and height. Moreover, the state of Michigan as a whole has also passed similar legislation.
Such new statutes have caught the attention of labor law attorneys and judges nationwide, as most state and federal courts still maintain that height and weight do not constitute disabilities under the language of the ADA or ADA equivalents at the state level.
The key question is whether height and weight are essential requisites of the open position. If height or weight are related to completing the job’s essential functions, those factors can be taken into consideration for the purposes of hiring and continued employment. However, the employer must explicitly detail the criteria for acceptable height and weight to remain bulletproof in the context of the law. If an employer fails to explicitly detail how weight and height are essential to job functions, the door is open for a potentially lucrative hiring discrimination lawsuit.
Aside from adult entertainment, basketball, and other sports, additional exceptions to employment law protecting individuals based on weight or height include the modeling industry and the acting industry. Oftentimes, casting directors for movies and TV shows require that actors be a certain height, weight, gender, or aesthetic to properly portray a character.
Modeling agencies that discriminate against short or heavy-set individuals are not in violation of labor law simply because specific height/weight characteristics are integral to modeling industry success. As a result, it is perfectly legal for a modeling agency or casting director to inquire about a prospective hire’s height and weight before an interview.
However, it is illegal for a school, factory, publishing house, or other business to make such an inquiry as height and weight do not affect job performance in such roles.
Take Action After Height or Weight Discrimination
If you know or suspect you’ve been discriminated against based on your height or weight in hiring or employment, do not suffer in silence. Document the entirety of the discrimination and submit the details to your labor law attorney in California.
Take screen captures of the job posting, print the job posting, and make copies to forward to your California employment law attorney. The details of the posting, including its description and even its related application, might have the consequence or appearance of discrimination based on height, weight, or other factors.
As an example, if a restaurant manager or owner refused to hire you as a waiter/host due to your weight or height, as your presence might lead to less customer patronage, actionable discrimination might have occurred. However, it will be an uphill battle to prove such discrimination unless you gather evidence for presentation to your California labor law attorney. Moreover, the refusal to promote someone based on body size or height also sets the stage for employment litigation based on the creation of a hostile work environment.
If discrimination based on weight or height occurred after hire, obtain the employer’s employment policy documents and any related materials for comparison with anti-discrimination laws. Everything from employee handbooks to EEOC policies, training courses, and training materials can be used as evidence in a court of law. If your height or weight is alleged to interfere with work success after hire and you are terminated or demoted for that reason, there might be sound legal footing for a lawsuit.
Frequently Asked Questions About Hiring Discrimination
Can an employer discriminate against me based on height or weight?
In general, no. However, if the position requires that the candidate be in a general weight or height range, it is possible for an employer to legally discriminate against those who do not meet the requirements. For example, an adult entertainment business owner can give preference to slim, tall, and attractive individuals without violating labor laws.
Can it be proven that weight or height played a role in hiring?
Indeed, it can be proven. A California labor law attorney will take a deep dive into your employment discrimination case to determine if you were removed from consideration based on weight, height, race, ethnicity, religion, or another reason.
Can financial compensation be obtained after an employer discriminates based on height or weight?
Yes. If our employment law attorney proves an employer refused to hire you based on your height or weight, it is possible to obtain a significant amount of financial compensation through a settlement or court award.
Are height and weight hiring discrimination laws the same throughout the United States?
No. The subtle nuances of height and weight discrimination laws differ by locale. For example, the height and weight discrimination laws in New York City are significantly different from those in other cities and states throughout California, Florida, and beyond.
Contact Gomez Law Today
For help, contact Gomez Trial Lawyers today for a free consultation by calling 866-TRIAL LAW (866-874-2552) or by contacting us online.
