Weight Discrimination

Can a New York Employer Discriminate Based on Weight?

Posted in Weight Discrimination on July 22, 2015

obesityObesity is a major problem in the United States, and New York is no exception. According to the American Medical Association, more than one in three American adults are obese and over two in three are overweight or obese. It is well known that obesity markedly increases the likelihood of developing a number of other very serious health problems including type 2 diabetes, cancer, heart disease, liver disease, and stroke.

What is less well documented, but understood by many is that being obese also increases one’s likelihood of facing discrimination based on weight at work. The weight-based discrimination most acutely impacts obese women who on average receive $7 less per hour than their non-obese counterparts. Obese men make on average $2 less per hour than their non-obese counterparts.

Unfair? Absolutely! Illegal? It is less than clear. Neither New York nor federal law contains a direct prohibition for weight-based discrimination. There have been some pushes for legislation to that effect but none have gained enough traction to move forward. That being said, there are circumstances in which weight motivated discrimination can form the basis for a lawsuit on the grounds that obesity is a disability.

Under New York’s Human Rights Law (NYHRL) employers are prohibited from discrimination based on “disability.” A disability under the law is a “physical, mental, or medical impairment” and in the employment context, discrimination is prohibited only if “upon the provision of reasonable accommodations,” the employee can perform the job at issue “in a reasonable manner.”

Despite the many physical issues that accompany being overweight or obese, neither is in and of itself considered a disability. New York’s highest court in Delta Air Lines v. New York State Division of Human Rights expressly held that being overweight alone is a disability. The case made clear that whether being overweight or obese is a disability is determined on a case by case basis.

The court pointed to an earlier case, New York State Division of Human Rights v. Xerox, as the type of case where being overweight/obese could legitimately be declared a disability. At Xerox, a prospective employee was denied employment as a systems analyst because her medical examination found that she was “obese.” The court found this to be unlawful discrimination, noting that the employer had no right to deny the prospective employee employment simply because of “a possibly treatable condition of excessive weight.”

Additionally, since that case was decided in 1997, the American Medical Association has defined obesity as a disease. The growing weight problem in the United States is frequently referred to as an “epidemic,” a term that means widespread disease. In short, there is a trend towards recognizing obesity as a disease or disability and a growing recognition that, like other disabilities, it isn’t always easily cured by “self-control” or “diet and exercise.” This trend is likely to prove favorable for those seeking protection from employment discrimination on the grounds of obesity.

If you have been denied employment or treated unfairly at your job because of your weight, contact Joseph & Norinsberg’s experienced New York employment law attorneys at (212) JUSTICE or info@employeejustice.com  to discuss your options.

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