Appearance Discrimination: the Evidence of the Weight
| Publication year | 1994 |
| Pages | 841 |
| Citation | Vol. 23 No. 4 Pg. 841 |
1994, April, Pg. 841. Appearance Discrimination: The Evidence of the Weight
In the fall of 1993, the New England Journal of Medicine reported that women who are overweight were less likely to have married and had lower household incomes than other women.(fn1) The authors of the study concluded that the "stigma associated with obesity" and subsequent "discrimination against people who are overweight may account for these results."(fn2) Further, the authors recommended that Congress extend the Americans With Disabilities Act ("ADA") to discrimination against overweight persons. The Equal Employment Opportunity Commission ("EEOC") has endorsed this view.(fn3)
Recently, two courts have addressed both sides of the issue of whether obesity is a disability. This article discusses these cases against the backdrop of the ADA and whether the door has been opened to claims of so-called "appearance discrimination."(fn4)
Prior to the passage of the ADA, cases involving unfair treatment on the basis of an individual's weight or height involved claims of sex, national origin or race discrimination under Title VII of the Civil Rights Act of 1964.(fn5) Indeed, myriad cases have examined discrimination based on mutable characteristics of appearance, including grooming standards, dress codes, hair length, beards, earrings and even the wearing of nail polish.(fn6)
The ADA prohibits discrimination "against a qualified individual with a disability."(fn7) A disability is defined as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.(fn8)
Neither the ADA nor its implementing regulations specifically address the question of whether obesity is a disability. However, the regulations indicate that an impairment under the ADA is a physiological or mental disorder.(fn9) Thus, simple physical characteristics, such as eye or hair color, left-handedness or height or weight within a "normal" range are not impairments.(fn10) Similarly, a physical condition that is not the result of a physiological disorder, such as pregnancy or a predisposition to a certain disease, would not be an impairment.(fn11)
However, the ADA further protects those persons "perceived" to have a substantial limitation on a major life activity even if they are not actually impaired.(fn12) The basis for extending coverage to such persons is that "society's myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairments."(fn13)
EEOC guidance cites the example of an experienced assistant manager of a convenience store who has a prominent facial scar being passed over for promotion because management believes the public and vendors would not want to look at this person.(fn14) In other words, negative attitudes regarding appearance could be discriminatory if not supported by a legitimate, nondiscriminatory reason for adverse action. The following cases address the "perceived disability" issue.
The California Supreme Court recently held in Cassista v. Community Foods, Inc.,(fn15) that a person's weight may not be considered a disability under California state law unless medical evidence demonstrates that the person's weight results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity. The decision upheld a jury verdict in favor of the employer. The opinion reflects the prevailing view on this issue.(fn16)
The plaintiff in Cassista was a 5'4" woman who weighed 305 pounds. She applied for one of three openings at Community Foods, a health food store in Santa Cruz, California. The positions involved running the cash register, stocking produce and food items, and lifting and carrying groceries around the store. During an interview, she and members of the
store's hiring committee discussed her previous work experience and the requirements of the job. She was asked if she had any physical...
To continue reading
Request your trial