49 States Legally Allow Employers to Discriminate Based on Weight

In Sexist Laws Explained, Los Angeles-based attorney Areva Martin, Esq. unpacks the antiquated laws that hold back women.

The laws: While popular culture continues to perpetuate the notion that “fit” is preferable to “fat,” few people are aware that it’s legal in 49 states to terminate a person for the unforgivable sin of packing a few extra pounds.

Most states adhere to a long-recognized practice that allow employers to fire employees for any reason they want: at-will employment. This long-standing doctrine recognizes that employment is voluntary and indefinite for both employers and employees — and can be terminated at any time for any reason by either party.

There are, of course, exceptions to this rule. Federal law prohibits employers from firing employees on the basis of race, color, age, gender, religion or natural origin. (While the Obama administration included sexual orientation and gender identity among those protected classes, the Justice Department filed court papers in July arguing that those groups are not protected by federal discrimination laws.) Federal law also precludes employers from terminating employees on the basis of having disability. Additionally, employers cannot ax employees for filing a discrimination or harassment suit, reporting the company’s illegal or unsafe practices or taking family medical leave.

But these federal anti-discrimination laws provide little to no protection for overweight employees — even though there’s plenty of evidence that weight discrimination is a real phenomenon. A 2008 study conducted by researchers at Yale University found that 10% of women and 5% of men had experienced discrimination based on their weight, including being rejected for a job. A 2014 study from Vanderbilt University found that overweight women are paid less than their male colleagues across a variety of industries.

Some U.S. cities like San Francisco and Binghamton, N.Y. have passed legislation preventing weight discrimination. But Michigan is the only state that has an explicit law on the books. The law, which was passed in 1976, also forbids discrimination on the basis of age and height.

The cases: The Michigan law faced a major test in 2010 when former Hooters waitress Cassandra Smith filed a lawsuit against the “breastaurant” chain, alleging that managers at the Roseville restaurant where she worked told her that if she didn’t lose weight in 30 days, she would face a “separation” from the company. A month later, another former employee of the Roseville branch, Leanne Convery, claimed the same thing had happened to her.

The company denied Smith and Convery’s specific claims, but didn’t deny enforcing standards on appearance. “We will say that our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair,” a spokesperson for the company said at the time. “It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.” (The case was later settled in private arbitration.)

Weight discrimination has also faced challenges in states that don’t have laws explicitly forbidding it on the books. In 2013, a federal judge heard the case of 22 former cocktail waitresses at the Borgata Hotel Casino & Spa in Atlantic City, N.J., who said that their employer discriminated against their weight. The women, who the casino referred to as the “Borgata Babes,” claimed that the casino prohibited them from gaining more than seven percent of their original body weight. Some claimed that they were told to take laxatives to shed pounds before mandatory company weigh-ins.

In July 2013, Atlantic County Superior Court Judge Nelson Johnson ruled that the casino’s policy did not constitute sex discrimination, noting that all of the women signed statements agreeing to the terms. “The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation,” Johnson wrote, according to the The Press of Atlantic City. “Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”

What it means for women: The Hooters and Borgata Babes cases both employed an “image standard” to defend and enable the behavior of the employers. But that image standard is really a double standard. We already know that women are judged more harshly than men for their physical appearance. But overweight women face such criticism at even harsher levels — from both men and women.

A 2016 study found that male job interviewers judged overweight female candidates more harshly than overweight male candidates, while female job interviewers judged both female and male overweight candidates harshly. “When it comes to ‘beauty,’ being an overweight woman is judged negatively by both sexes whereas men are a lot more forgiving towards each other,” Sonia Oreffice, a professor of the University of Surrey and the study’s lead author, said in a press release at the time. “Body size matters for wages, not simply as proxy for beauty.”

The Borgata Babes case sets a dangerous precedent. Courts are essentially allowing employers to body shame their employees, which studies have shown to have harmful effects on women’s health. Though both of these cases involved companies that employ women primarily as eye candy, it’s not hard to see how employers in other fields could cite the Borgata Babes decision to argue in favor of an “image standard” in their offices.

And, perhaps more devastatingly, it reinforces the archaic cultural idea that women are valued entirely on how they look rather than their skill set, experience or talent. And deeming overweight women less valuable can have detrimental effects on their bottom line, whether it’s getting paid less or getting passed over for a job or promotion. We’ve waited long enough to highlight just how harmful weight discrimination can be — it’s time to shine a light on these practices and stop punishing people for their body size.

Areva Martin is an attorney, advocate, television host, legal and social issues commentator and author. She is the founder of Martin & Martin, LLP, and her next book, Make It Rain!, about developing personal brands, will be published by Hachette in 2018.