News
Civil Rights
Jul. 23, 2002
Watching Policy on Weight
Forum Column - By Gloria Allred and Margery Somers - Southwest Airlines recently announced that it will enforce a policy that certain overweight flyers will have to pay for two seats. Is Southwest's policy toward its heavier-than-the-norm flyers legal? May employers also choose to treat employees differently if they are heavier than the norm? It depends. The answers may depend on how heavy you are, the reason for your weight and where you live, to name just a few factors.
Forum Column
By Gloria Allred and Margery Somers
Southwest Airlines recently announced that it will enforce a policy that certain overweight flyers will have to pay for two seats. Is Southwest's policy toward its heavier-than-the-norm flyers legal? May employers also choose to treat employees differently if they are heavier than the norm? It depends. The answers may depend on how heavy you are, the reason for your weight and where you live, to name just a few factors.
This new issue begs the question: How will Southwest know who should be charged double and who should not?
"Ticket agents will not have height and weight requirements to follow when determining who comfortably fits into one seat or who needs to purchase another ticket," Southwest spokeswoman Christine Turneabe-Connelly told CNN recently. "Generally, if the armrest cannot go down or if a seatbelt extension is required, the passenger is considered oversized." If the flight is not full, the overweight flier will be reimbursed for the second seat.
Looking at these issues requires examining the Americans with Disabilities Act. Under the act, Southwest must reasonably accommodate the disabled as it is an air carrier for the public. This means attendant aides for wheelchair users and the blind, interpreters for the deaf if necessary (although captions and writing usually suffice) and special meals for diabetics. The best accommodation need not be provided, only a reasonable one that is not hazardous or unduly burdensome.
Thus, if obesity is deemed a disability, Southwest's policy could be deemed unlawful. So far, however, obesity itself has not been considered a disability under the law or otherwise. In fact, the National Association to Advance Fat Acceptance adamantly states that being obese is not a disability. However, for those whose obesity stems from a medical condition that may qualify them as disabled under the law, their weight may be considered a disability. Also, Michigan is the only state that expressly protects weight in its anti-discrimination statutes, as does the District of Columbia.
Although this issue has not been litigated under the public accommodation arm of the Americans with Disabilities Act, the employment arena of the act gives us some guidance, at least in California. There are two ways an obese claimant might find protection in an employment situation in this state. In Santa Cruz and San Francisco, weight is considered a protected class in and of itself, similar to race or sex, by ordinance.
In these cities, a claimant, therefore, can assert they were denied employment expressly because of their weight. On May 8, Jennifer Portnick, at more than 200 pounds, filed a discrimination charge in San Francisco claiming she was denied employment as a Jazzercise instructor because of her weight. She alleged she could do the job even though she was heavier than the norm. It was reported that she had a successful outcome in the settlement of her matter, marking a key victory for the "fat acceptance" movement, a burgeoning national campaign aimed at improving the self-image and social standing of heavier Americans.
California employees other than those who reside in San Francisco or Santa Cruz would have to prove their excessive weight qualifies as a disability under either the Americans with Disabilities Act or our concomitant state statute, the Fair Employment and Housing Act, to assert either a weight discrimination claim or a claim that their employer failed to reasonably accommodate their weight. The employment act, which gives broader protection than the disabilities act, protects "disabilities physiological in nature ... that limit major life activities" under California Government Code Section 12926(k).
There's a catch, though. At first blush, it seems that obesity would easily qualify as a disability in California. Although often used as a synonym for fat or corpulent, obesity in medical terms generally refers to the condition of a person who is 20 percent above the ideal weight. Seven out of 10 Americans are overweight and more than a fourth of America is now obese according to the Centers for Disease Control.
Since excessive weight is most often physiologically rooted and limits major life activities such as running, walking and breathing, it would seem to qualify for protection under the employment act. However, the California Supreme Court already found differently. Perhaps recognizing the potential floodgate of litigation, our highest court significantly limited weight discrimination suits in Cassista v. Community Foods Inc., 5 Cal.4th 1050 (1993).
Toni Cassista applied for one of three openings at a health food store. At 5'4" and more than 300 pounds, she was denied the position because the store's personnel coordinator admitted telling her "you couldn't physically do the job because of your weight." She argued that she was perceived as disabled and thus, under the "regarded as disabled" section of the employment act, alleged that she was being discriminated against as a job applicant. She lost in the trial court.
The Court of Appeals reversed, finding in part that the evidence established that Community Foods considered the plaintiff's weight a disability under the employment act and a factor in their decision to not hire her. They recognized that obese persons could be perceived as disabled.
The California Supreme Court, however, had the last word on this issue. They reversed, holding that unless Cassista's obesity was triggered by another physiological, systemic condition, she did not have a qualified disability based on excessive weight alone. While weight may qualify as a protected disability within the meaning of the employment act, medical evidence must show that excessive weight is the result of a physiological condition affecting one or more basic bodily symptoms and that it limits major life activities. Cassista could not make that showing.
According to the California Supreme Court, if a thyroid condition, an organic disorder or some other "immutable" condition triggers excessive weight, an obese person may qualify as disabled. Medical evidence is, therefore, necessary. Note that the court did not pave the way for psychological conditions to trigger the obesity such as obsessive food addition and eating disorders, only physiological conditions.
As it stands today, California's anti-discrimination statutes protect only people who can show a physiological, systemic basis for their excessive weight. After the Cassista decision, Jeff Stryker in a 1994 article in Marketplace, quoted Cassista as saying, "Employers will have a hellacious time applying this standard, determining whether a prospective employee is fat due to lack of genetics or willpower; biology or character flaw."
"Sometimes there is an obvious relationship between weight and ability to get the job done. Under both the [disabilities act] and the [employment act] employees need to be able to perform the essential functions of the job with or without accommodation. Even on Southwest Airlines flight attendants need to fit in the aisle; jockeys need to sit light in the saddle," states Stryker.
Even so, job applicants deserve an individualized determination that takes into account particular job demands and abilities, not stereotypes or generalizations. To do otherwise treats heavy people like second-class citizens. Employers need to understand that the prejudice overweight people experience on the job rarely relates to their abilities. It is just the workplace expression of the American belief that you can't be too thin or too rich.
If Southwest Airlines is charging heavy fliers for two seats, perhaps we should lobby television lawyers to bring more awareness to this issue. If Camryn Manheim were to be charged for two seats, shouldn't Calista Flockhart be charged only half a seat? Maybe she could share with Lara Flynn Boyle? And what about Dylan McDermott and those extra long legs? Food for thought.
Gloria Allred is a partner in the Los Angeles law firm of Allred, Maroko & Goldberg. Margery Somers is an associate with that firm.
By Gloria Allred and Margery Somers
Southwest Airlines recently announced that it will enforce a policy that certain overweight flyers will have to pay for two seats. Is Southwest's policy toward its heavier-than-the-norm flyers legal? May employers also choose to treat employees differently if they are heavier than the norm? It depends. The answers may depend on how heavy you are, the reason for your weight and where you live, to name just a few factors.
This new issue begs the question: How will Southwest know who should be charged double and who should not?
"Ticket agents will not have height and weight requirements to follow when determining who comfortably fits into one seat or who needs to purchase another ticket," Southwest spokeswoman Christine Turneabe-Connelly told CNN recently. "Generally, if the armrest cannot go down or if a seatbelt extension is required, the passenger is considered oversized." If the flight is not full, the overweight flier will be reimbursed for the second seat.
Looking at these issues requires examining the Americans with Disabilities Act. Under the act, Southwest must reasonably accommodate the disabled as it is an air carrier for the public. This means attendant aides for wheelchair users and the blind, interpreters for the deaf if necessary (although captions and writing usually suffice) and special meals for diabetics. The best accommodation need not be provided, only a reasonable one that is not hazardous or unduly burdensome.
Thus, if obesity is deemed a disability, Southwest's policy could be deemed unlawful. So far, however, obesity itself has not been considered a disability under the law or otherwise. In fact, the National Association to Advance Fat Acceptance adamantly states that being obese is not a disability. However, for those whose obesity stems from a medical condition that may qualify them as disabled under the law, their weight may be considered a disability. Also, Michigan is the only state that expressly protects weight in its anti-discrimination statutes, as does the District of Columbia.
Although this issue has not been litigated under the public accommodation arm of the Americans with Disabilities Act, the employment arena of the act gives us some guidance, at least in California. There are two ways an obese claimant might find protection in an employment situation in this state. In Santa Cruz and San Francisco, weight is considered a protected class in and of itself, similar to race or sex, by ordinance.
In these cities, a claimant, therefore, can assert they were denied employment expressly because of their weight. On May 8, Jennifer Portnick, at more than 200 pounds, filed a discrimination charge in San Francisco claiming she was denied employment as a Jazzercise instructor because of her weight. She alleged she could do the job even though she was heavier than the norm. It was reported that she had a successful outcome in the settlement of her matter, marking a key victory for the "fat acceptance" movement, a burgeoning national campaign aimed at improving the self-image and social standing of heavier Americans.
California employees other than those who reside in San Francisco or Santa Cruz would have to prove their excessive weight qualifies as a disability under either the Americans with Disabilities Act or our concomitant state statute, the Fair Employment and Housing Act, to assert either a weight discrimination claim or a claim that their employer failed to reasonably accommodate their weight. The employment act, which gives broader protection than the disabilities act, protects "disabilities physiological in nature ... that limit major life activities" under California Government Code Section 12926(k).
There's a catch, though. At first blush, it seems that obesity would easily qualify as a disability in California. Although often used as a synonym for fat or corpulent, obesity in medical terms generally refers to the condition of a person who is 20 percent above the ideal weight. Seven out of 10 Americans are overweight and more than a fourth of America is now obese according to the Centers for Disease Control.
Since excessive weight is most often physiologically rooted and limits major life activities such as running, walking and breathing, it would seem to qualify for protection under the employment act. However, the California Supreme Court already found differently. Perhaps recognizing the potential floodgate of litigation, our highest court significantly limited weight discrimination suits in Cassista v. Community Foods Inc., 5 Cal.4th 1050 (1993).
Toni Cassista applied for one of three openings at a health food store. At 5'4" and more than 300 pounds, she was denied the position because the store's personnel coordinator admitted telling her "you couldn't physically do the job because of your weight." She argued that she was perceived as disabled and thus, under the "regarded as disabled" section of the employment act, alleged that she was being discriminated against as a job applicant. She lost in the trial court.
The Court of Appeals reversed, finding in part that the evidence established that Community Foods considered the plaintiff's weight a disability under the employment act and a factor in their decision to not hire her. They recognized that obese persons could be perceived as disabled.
The California Supreme Court, however, had the last word on this issue. They reversed, holding that unless Cassista's obesity was triggered by another physiological, systemic condition, she did not have a qualified disability based on excessive weight alone. While weight may qualify as a protected disability within the meaning of the employment act, medical evidence must show that excessive weight is the result of a physiological condition affecting one or more basic bodily symptoms and that it limits major life activities. Cassista could not make that showing.
According to the California Supreme Court, if a thyroid condition, an organic disorder or some other "immutable" condition triggers excessive weight, an obese person may qualify as disabled. Medical evidence is, therefore, necessary. Note that the court did not pave the way for psychological conditions to trigger the obesity such as obsessive food addition and eating disorders, only physiological conditions.
As it stands today, California's anti-discrimination statutes protect only people who can show a physiological, systemic basis for their excessive weight. After the Cassista decision, Jeff Stryker in a 1994 article in Marketplace, quoted Cassista as saying, "Employers will have a hellacious time applying this standard, determining whether a prospective employee is fat due to lack of genetics or willpower; biology or character flaw."
"Sometimes there is an obvious relationship between weight and ability to get the job done. Under both the [disabilities act] and the [employment act] employees need to be able to perform the essential functions of the job with or without accommodation. Even on Southwest Airlines flight attendants need to fit in the aisle; jockeys need to sit light in the saddle," states Stryker.
Even so, job applicants deserve an individualized determination that takes into account particular job demands and abilities, not stereotypes or generalizations. To do otherwise treats heavy people like second-class citizens. Employers need to understand that the prejudice overweight people experience on the job rarely relates to their abilities. It is just the workplace expression of the American belief that you can't be too thin or too rich.
If Southwest Airlines is charging heavy fliers for two seats, perhaps we should lobby television lawyers to bring more awareness to this issue. If Camryn Manheim were to be charged for two seats, shouldn't Calista Flockhart be charged only half a seat? Maybe she could share with Lara Flynn Boyle? And what about Dylan McDermott and those extra long legs? Food for thought.
Gloria Allred is a partner in the Los Angeles law firm of Allred, Maroko & Goldberg. Margery Somers is an associate with that firm.
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