A Matter of Some Weight

ABA Journal—Margaret Graham Tebo
May 31, 2005


Law professor Paul Campos has this to say to employers, doctors and others who say they worry about employees’ or patients’ weight because of rising health care costs and slipping life spans: baloney.

There is no clear evidence that a person’s size is the primary factor for determining overall health or longevity, says Campos of the University of Colorado at Boulder.

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Nevertheless, lawsuits alleging discrimination based on weight are increasing, lawyers and other experts say. Plaintiffs are often basing their suits on the federal Americans with Disabilities Act or on human rights ordinances that are in effect in a handful of U.S. jurisdictions.

Plaintiffs in Michigan can cite a state law that bars discrimination against the overweight, and in New Jersey they can base suits on the state’s broad Law Against Discrimination.

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Plaintiffs attorney Gary Phelan, … often represents obese clients, especially in employment discrimination cases. In one important case dealing with ADA protections, he represented a firefighter before the 2nd U.S. Circuit Court of Appeals at New York City.

The plaintiff had been suspended for a day for being over the fire department’s weight limit. The appeals court said the ADA covers obesity if an employer regards it as a physiological impairment or the plaintiff is so morbidly obese that it affects normal life activities. Because the firefighter was fired simply for failing to meet generally applicable weight criteria, his complaint should be dismissed, the court said. Francis v. City of Meriden, 129 F.3d 281 (1997).

Phelan apparently had better success in 2003 when he represented an obese man who wanted to work for McDonald’s. The client, Joseph Connor, was promised a position at the Hamden, Conn., McDonald’s outlet but was told he would have to wait to start the job until a uniform could be specially ordered for him.

Months later, he still had not been given a start date, even though the restaurant had hired several other new employees in the interim, Phelan says. Connor sued the franchise owner and McDonald’s Corp. under the ADA, alleging Connor qualified as a plaintiff under the act because McDonald’s regarded him as disabled due to his weight. The U.S. District Court for the District of Connecticut refused to dismiss the case; it was subsequently settled, according to Phelan. The terms of the settlement are sealed, and Phelan says he cannot comment on the specifics.

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“Thirty years ago, it used to be routine in this country to discriminate on the basis of age. We realized the fallacy of the presumptions in that circumstance.”

The solution, Campos says, is for the law to take the approach that body diversity is a human rights issue. Legislatures should refuse to make public policy based on concepts of obesity and instead ban discrimination on the basis of body mass, he says. Nor, he adds, is that notion as absurd or far-fetched as it sounds.