"Weighting" for protection in Massachusetts: the myth of equal opportunity in employment.

• Author: Kubilis, Courtney N.

"This is one of the only groups where an employer could say, 'We don't want fat people' and get away with it...." (1)

1. INTRODUCTION

   On January 10, 2007, Massachusetts Representative Byron Rushing introduced legislation to prohibit height and weight discrimination in employment, housing, and real-estate transactions. (2) The bill represents Representative Rushing's tenth effort to address height and weight discrimination in the workplace; however, each year the proposed legislation has failed to reach a vote. (3) Issues of height and weight discrimination have gained increased attention in recent years, and thus Representative Rushing has expressed confidence in the current bill. (4)

   Within the past two decades, obesity rates in the United States have increased significantly. (5) A 2007 study revealed that in 2005, 56 percent of Massachusetts adults qualified as overweight and 21 percent as obese. (6) Although Massachusetts has the second lowest rate of obesity in the United States, the rise in overweight adults in the state represented a 40 percent increase since 1990. (7)

   Although neither the Massachusetts Commission Against Discrimination (MCAD) nor the Equal Employment Opportunity Commission catalogs weight discrimination complaints, employment lawyers suggest such complaints have increased in recent years. (8) As only one state in the United States, Michigan, treats weight as a protected class, size-discrimination plaintiffs must seek relief under existing remedies; however, thus far these efforts have attained minimal success. (9) For example, in 1994, Gail Gauthier filed a complaint with the MCAD alleging that Saturn of Natick refused to hire her because of her age and weight. (10) Ms. Gauthier, who was fifty-three years old and weighed 250 pounds, alleged that when she arrived for a scheduled interview at Saturn of Natick, she overheard her interviewer expressing his refusal to conduct the interview, which she attributed to her age and appearance. (11) Because Massachusetts does not recognize weight as a protected status, Gauthier brought her weight discrimination claim under handicap discrimination. (12) Recognizing Massachusetts's failure to protect against weight discrimination, the MCAD dismissed Gauthier's complaint because she failed to prove her weight constituted a handicap. (13)

   This Note will begin by outlining the historic expansion of civil-rights protection in Massachusetts within the employment context. (14) It will then address the increased concern regarding weight discrimination and how existing Massachusetts law fails to provide an adequate avenue for bringing weight-discrimination claims. (15) Moreover, it will examine existing laws in other United States jurisdictions that have addressed similar issues and employ these jurisdictions as tools for comparison in addressing criticism of the pending Massachusetts legislation. (16) Finally, this Note will suggest ways to increase the legislation's probability of enactment and success. (17)

2. HISTORY

   "This has been our view in Massachusetts ... that employment discrimination will not be ended until the door is opened to provide the remedy." (18)

   1. History of Massachusetts Anti-Discrimination Law

      Currently, Massachusetts's anti-discrimination statute prohibits employers from discriminating on the basis of race, color, religion, national origin, sex, age, sexual orientation, genetic information, or ancestry, absent a bona fide occupational qualification. (19) While such protections elicit little debate today, the history of civil-rights protection illustrates that throughout the statute's expansion, inclusion met opposition. (20) Nonetheless, throughout the country's history, Massachusetts has led in the advancement of anti-discrimination laws. (21)

      On May 23, 1946, the Massachusetts legislature enacted An Act Providing For a Fair Employment Practice Law. (22) The Fair Employment Practice Act (Act) represented a response to nationwide racial and religious tension, as African-American workers and individuals from certain religious groups combated barriers to equal employment opportunities. (23) The Act established that discrimination based on race, color, religious creed, national origin, or ancestry ran contrary to the rights of the citizens of Massachusetts. (24) The statute applied to businesses employing six or more individuals, prohibiting those employers from discriminating against individuals on the basis of the enumerated characteristics in making employment decisions. (25) This statute made Massachusetts the third state in the United States to adopt fair-employment legislation. (26)

      Massachusetts Governor Maurice J. Tobin praised the Act as "a milestone in social legislation." (27) While publications hailed the law a "hit," prior to its enactment, the Act's supporters met resistance. (28) In a Boston Chamber of Commerce poll, members opposed the legislation nine to one. (29) Further, at hearings held at the State House on February 18, 1946, the Associated Industries of Massachusetts expressed concern that the proposed legislation would burden business. (30) The Governor, however, promised to appoint employer advisors and "good people" to the Commission, and the group discontinued its opposition. (31)

      Over the years, the Massachusetts legislature expanded the antidiscrimination statute, granting protection to a greater number of individuals. (32) In 1965, the legislature amended the statute to protect against gender discrimination. (33) Subsequently, in 1975, the legislature extended protection to prohibit age discrimination. (34) In 1984, the legislature prohibited discrimination on the basis of an individual's disability. (35) On November 7, 1989, after seventeen years of opposition and defeat, Massachusetts passed legislation to protect individuals against employment discrimination on the basis of sexual orientation, thereby becoming only the second state with such protection in the country. (36) In July 2000, the Massachusetts legislature amended chapter 151B of the Massachusetts General Laws to prohibit discrimination in employment on the basis of genetics. (37) The MCAD last expanded the scope of employment protections in 2001, interpreting prohibitions against sex discrimination to include discrimination against transsexual individuals. (38)

   2. Rising Problem of Weight-Based Discrimination

      Overweight individuals face discrimination on a daily basis in nearly every aspect of their lives, causing significant financial, social, and professional harm. (39) Researchers indicate that societal norms, the media, and even healthcare professionals perpetuate weight bias. (40) Studies suggest that the media reinforces negative perceptions of overweight individuals, particularly women. (41) As for health care professionals' attitudes, studies have reported that 50 percent of primary-care physician respondents agreed that obese patients were unattractive, lazy, and noncompliant. (42)

      1. Weight Bias Learned Early

         Studies indicate that weight discrimination begins at an early age. (43) Research shows that weight bias may begin as early as three years of age. (44) Researchers suggest that young children learn weight bias through both parental and media transmissions. (45) In one of the earliest studies on children and weight bias, researchers asked children ages ten to eleven from differing cultural backgrounds to rank six drawings depicting children with different physical characteristics according to likability. (46) Four of the drawings portrayed children suffering from various disabilities, the fifth showed an overweight child, and the sixth picture represented a "normal weight" child with no disability. (47) Overwhelmingly, the participants found the overweight child as the least likable. (48) In 2003, researchers replicated this study, yielding results indicating an even greater level of prejudice. (49) The disparity in likability between pictures of the "normal weight" child and the overweight child had increased by 41 percent in the new study. (50) Another study, in which child participants described three silhouettes portraying children of differing body sizes, reported that the participants described the overweight child's silhouette as "lazy, sloppy, dirty, naughty, cheats, lies, argues, mean, ugly, and stupid." (51)

         Children's negative perceptions of overweight children stigmatize their overweight peers. (52) Such consequences include fewer friends, fewer social invitations, and victimization. (53) In addition, researchers suggest that overweight children's self-perception suffers because of their peers' weight bias. (54) Further, children who believed they bore responsibility for their body size reasoned that their weight accounted for their lack of friends and exclusion from social interaction. (55) Ninety-one percent of the child participants expressed feelings of shame for their size, and 90 percent believed peer disparagement would cease if they lost weight. (56) Additionally, research indicates that peers' weight-related criticism results in decreased enjoyment in sports and physical activities among overweight children. (57) Furthermore, the childhood effects of weight bias continue to plague overweight adolescents and adults in all aspects of life. (58)

      2. Obesity: Causes and Treatment

         In recent years, the weight-loss industry has grown significantly, generating an annual profit of over $30 billion. (59) Despite tens of millions of Americans undertaking dieting regimes at any one time in the United States, weight loss success rates among obese individuals are nonexistent. (60) Rather, studies indicate that diets fail 90 to 98 percent of the time. (61) These figures support the theory that overweight individuals' failure to lose weight does not necessarily correlate with a lack of effort or discipline on the part of the dieter. (62) Achieving a desired weight for most overweight and obese adults represents an...