Employment Law

Is Weight Discrimination the Next Legal Frontier?

As Corporate Counsel puts it, “[t]he day of weight discrimination as a legal matter is only dawning.” The ramifications of such laws are vast and frightening to employers. Instead of being afraid, employers, and the attorneys who represent them, need to be prepared for likely growth in this area of the law. 

Although Congress has yet to focus on weight discrimination in its legislation, some states and cities have begun to consider the issue. Traditionally, California cases have held that weight by itself, unrelated to a physiological, systemic disorder, does not constitute a “disability” within the meaning of the Fair Employment and Housing Act (FEHA) (Govt C §§12900-12996). See Cassista v Community Foods, Inc. (1993) 5 C4th 1050, 1061, 22 CR2d 287. 

But Govt C §12926.1 casts doubt on this conclusion, articulating the legislature’s intent that FEHA have a broader sweep, extending its coverage to individuals with “limitations” in major life activities, rather than “substantial limitations,” as the ADA requires, and declaring “working” as a major life activity. See Colmenares v Braemar Country Club, Inc. (2003) 29 C4th 1019, 1028, 130 CR2d 662. 

There are already local ordinances expressly prohibiting employment discrimination based on weight. See, e.g., San Francisco Police C §3303.

Weight discrimination legislation, Corporate Counsel argues, will “open a whole new world of complicated litigation,” because weight discrimination is a “current and significant issue,” which, unlike other discrimination areas, is difficult to define and may be a matter of choice, not genetics.

For the latest legal developments on weight and other employment discrimination issues, go to CEB’s Advising California Employers and Employees (Cal CEB 2005), which discusses personal appearance standards in §1.12, and Wrongful Employment Termination Practice, chap 2 (2d ed Cal CEB 1997).

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