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Weight discrimination: The next big protected category?

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in Discrimination and Harassment,Human Resources

Can employees be fired for being too fat? The topic is heating up, due in part to national headlines gained by two Hooters waitresses in Michigan who claim they were fired for being overweight. A judge last month gave them the green light to bring their cases to trial.

Federal law bans age, race, sex and religion bias, but doesn’t address weight. Michigan is the only state with a law banning weight discrimination. A handful of cities—including San Francisco and Madison, Wis.—plus Washington, D.C., also have such laws. But those numbers could be on the rise.

"Weight discrimination seems to be gaining traction as the next basis for protection under the law,” says Jonathan Yarborough, a partner with the Constangy Brooks law firm.

Weight discrimination is even more prevalent than race or gender discrimination, says a study in the International Journal of Obesity. It said that, among severely obese people, about 28% of men and 45% of women said they’ve experienced weight discrimination in employment.

In some cases, weight can be an issue under the federal Americans with Disabilities Act (ADA). The EEOC has said that morbid obesity is a protected disability under the ADA.

“However, most of the cases don’t look at weight as a disability, but rather at the underlying impairment that causes the weight issue,” says Yarborough. “In some cases, the employee or applicant argues that they are perceived as having a disability based on their weight. For example, a morbidly obese applicant applies to a job that is physically demanding and the employer perceives the applicant as being unable to perform the job due to the weight issue.”

In the Michigan Hooters case, the company is defending itself by saying the waitresses should be considered “entertainers,” similar to football cheerleaders or the Radio City Rockettes.

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