Hiring and firing
Jennifer Portnick of San Francisco had been an avid Jazzercise student for more than four years when her instructor asked her to become a teacher. To do that, the 5-foot-8 Portnick, who weighed 250 pounds, would have to become a Jazzercise franchisee.
Portnick says that when she applied, Jazzercise turned her down because she didn't meet its fit appearance requirements, telling her that she wasn't "leaner than the public."
Portnick filed a complaint under the San Francisco Human Rights Ordinance. In a settlement, she dropped her complaint, and Jazzercise dropped its fit-appearance requirement.
Jazzercise, citing recent studies and articles asserting the possibility of being overweight and fit, issued a statement: "Jazzercise has determined that the value of 'fit appearance' as a fitness criterion is uncertain, and therefore has eliminated this as one of the means of evaluating potential franchise applicants."
Overweight people who make it past hiring sometimes are placed in less desirable jobs or face outright harassment.
Bill Fabrey of the Council on Size & Weight Discrimination recalls that his late first wife, Joyce, weighed about 300 pounds and successfully managed her family business in New York City. But when the family moved to Rochester, she could only find undesirable positions.
"One was a bookbindery where cockroaches would fall from the ceiling onto her desk. Another was for the U.S. Postal Service, working a night shift of mail sorting," he says.
"She endured a lifetime of stigmatization on account of her size."
Weight bias drives down pay. Obese people's lower wages are so well documented that the phenomenon now has a name: the obesity penalty. For women, it's 6.2 percent, a 2004 study at Middle Tennessee State University found. For men, it's 2.3 percent.
However common it may be, weight bias is rarely directly targeted by current laws. Rather, attorneys invoke other antidiscrimination laws and argue that weight bias, though not specified, is covered by them. The most important is the Americans with Disabilities Act, which is enforced by the U.S. Equal Employment Opportunity Commission.
"Most cases that deal with obesity — and there aren't a lot of them — are brought under the 'regarded as' provision of the ADA," says Chris Kuczynski, an assistant legal counsel at the EEOC.
"An employee or applicant claims that an employer took an adverse action against them because the employer regarded the person's weight as an impairment," or disability.
An amendment to the law in 2008 made it easier to bring obesity actions, he says. It's no longer necessary for aggrieved employees to establish the employer's frame of mind. "Now," says Kuczynski, "they need only show what the employer did, not what the employer thought."
The EEOC is pursuing a lawsuit on behalf of the estate of Lisa Harrison, who was morbidly obese — meaning her weight was at least twice the ideal.