Can being trim make you more successful at work? Or in the alternative, can being overweight cost you your job? In most states, discrimination based on weight is legal – meaning that employers can generally use it as justification for discipline (unless it intersects with another protected class, such as gender). However, the Massachusetts legislature recently introduced a bill that would make it the second state in the country (after Michigan) that includes weight as a protected class for employment discrimination.

The Massachusetts bill is reflective of a trend across states and localities. Federal law has decades-old established laws against discrimination based on sex (i.e.: sexual harassment), race, religion, disabilities, and age (among other categories). However, these laws have not always expanded at the same rate as national and cultural trends. For example, while complaints of sexual harassment spiked after #MeToo, the actual burden for successfully proving discrimination based on sex is extremely high. Furthermore, federal law does not expressly prohibit discrimination based on sexual orientation (although certain circuits have read discrimination based on sex to include it).

Like Massachusetts, many states have decided to expand protections for the workplace without waiting for reforms at a national level. The “weight bill” likely reflects a pervasive societal trend: more than 40 percent of Americans are classified as obese. Further, the U.S. weight loss market generated was valued at $72 billion dollars in 2019. Weight is top of mind for most Americans and there is clear stigma associated with being both under and overweight.

In Washington, D.C., the government has expanded the “traditional” or federal protected classes laws to include protections such as personal appearance, gender identity, familial status, and place of residence. I recommend keeping track of the Massachusetts bill to see if weight as a protected class may be similarly added to other jurisdictions. I further recommend checking your state/locality to see if certain laws afford additional protections to employees/obligations on employers beyond the federal/”traditional” protections. A failure to do so may result in significant liability in the long term.

If you have any questions about this or any other Labor and Employment topics, please contact me at tstringham@offitkurman.com or 703-745-1849

ABOUT THEODORA STRINGHAM

tstringham@offitkurman.com | 703-745-1849

Theodora Stringham assists individuals, businesses, and organizations with growing successfully while minimizing liability. Focusing on real estate and personnel needs, Ms. Stringham executes sustainable plans for real estate development and employee matters. She provides comprehensive representation for everyday growth issues, including, but not limited to, re-zonings, site plan approvals, eminent domain/valuation concerns, employment discrimination, and disciplinary issues. Ms. Stringham’s scope of representation ranges from identifying potential liability and providing counseling/trainings, all the way through representation at trial.

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