Overweight & Under Pressure : Court Challenges to Weight Standards Are on the Increase

A growing number of people are asking the courts to decide if employers can refuse to hire--or can fire--them because they are overweight.

“We’re finding more and more people are litigating,” says Sally E. Smith, executive director of the National Assn. to Advance Fat Acceptance.

“As fat people, we’re told that we don’t deserve the same opportunities as thin people. It’s only recently we’ve begun to question that premise and say this isn’t right.”

Court decisions over the past few years have failed to clarify the issue. Employers have been generally successful in arguing their right to maintain weight standards, particularly in jobs--such as police work and fire fighting--where physical skills are important.

Employers also have justified decisions to fire overweight employees by saying the employee couldn’t wear a uniform or fit between machines or equipment. Some employers have claimed that a correlation exists between excess weight and higher health costs, worker’s compensation claims and absenteeism. They say that relationship gives them the right to impose weight standards.

“Unfortunately, there is no (federal) law that says employers cannot discriminate against people on the basis of weight,” says Ralph Fertig, an attorney with the Equal Employment Opportunity Commission.

In some cases, however, people fired because they exceeded company weight standards have won lawsuits by using related discrimination laws, Fertig says.

For example, instead of objecting to the presence of a weight standard, employees might say that enforcement of the rule is selective or gender-biased.

That is the contention in a pending case involving American Airlines flight attendants. Fertig, who is representing the flight attendants, says the weight tables used for women are stricter than those used for men.

American Airlines was unavailable for comment on the case.

In other lawsuits, overweight people have attempted to use state disability laws to claim their obesity is caused by a medical condition over which they have no control. These laws usually ask employers to make reasonable accommodations for disabled people.

A few people have argued in court that weight shouldn’t matter if the job has no physical requirements.

Smith says her group’s “viewpoint is that people should be judged on factors of competency and not on factors such as weight. Height and weight should not be used (as factors in hiring) as long as people can meet criteria to do that job. If they can pass tests, they should be eligible to do that job. You can’t make generalizations about the fitness level of an individual based solely on weight.”

But, she says: “Oftentimes there are jobs people apply for and they have to pass a physical given by a company doctor. These companies will use height-weight tables and will deny people employment on the basis of that.”

Smith and others say weight tables are not a good measurement of how someone will perform a job. Nor are they an accurate measure of good health, they claim.

An estimated 38 million Americans weigh more than the figures listed on standard height-weight charts, such as the widely quoted Metropolitan Life Insurance tables.

“I think it would be hard for anyone to say we’re not going to hire someone based on that chart. If (weight is) that important, they should formulate some type of testing procedure,” says David Greenberg, a Los Angeles attorney who successfully sued to reinstate a Los Angeles Times security guard who lost his job because he could not lose excess weight. In that case, Greenberg argued that the man’s excessive weight was a physical disability.

However, many people on both sides of the issue support the use of physical performance standards for particular jobs, such as fire fighting and police work.

“I wouldn’t particularly want a fireman who is grossly overweight trying to save people or a policeman who can’t run,” says Joyce Rue-Potter of Abundantly Yours, a San Diego-based national support group for the obese.

And many employers with weight guidelines firmly support their use.

“It’s for health reasons,” says Manny Hernandez, a public information specialist with the L.A. City Fire Department. “Our cardiovascular system has to be in top condition to deal with the stress that we deal with on a day-to-day basis.”

In new guidelines from the U.S. Department of Agriculture, medical experts also suggest a shift away from the concept of an “ideal” weight based on height-weight tables to new standards that emphasize “healthy” weight.

The new guidelines suggest using a hip-to-waist ratio to show the location of excess fat. In women, fat in the hips is correlated with greater health problems; in men, fat in the abdominal area is considered more problematic. The guidelines also suggest healthy weight should be based on a doctor’s opinion that someone is not at risk medically because of weight.

The guidelines also recommend that people on diets should lose weight at the rate of half-a-pound to one pound per week to achieve healthy, long-term weight loss.

The USDA guidelines are generally not used in hiring, but many company wellness programs apply them in company-sponsored weight loss programs.

Such weight standards based on health instead of appearance would be more acceptable to employees, says Sherri Cappello, vice president of the Assn. of Professional Flight Attendants and one of the plaintiffs in the American Airlines suit.

For instance, the flight attendants are seeking weight requirements that allow for a gradual increase with age, a common occurrence according to medical experts. American Airlines does not allow for any such weight gain, Fertig says.

“The courts have held that a company has a management right to these standards. Our feeling is that they should at least be health-based,” Cappello says.

The number of lawsuits on weight discrimination in the workplace could increase when the Americans with Disabilities Act, signed by President Bush in July, goes into effect in July, 1992, Fertig says.

The bill protects anyone with a physical or mental impairment that substantially limits a “major life activity” such as walking, seeing or working.

The bill does not specifically mention or exclude obesity.

“It’s a whole new act, so the big question is, can we argue successfully that weight is considered to be a disability?” Fertig says. “I suspect that will be a matter before the courts.”

HEIGHT-WEIGHT GUIDE

WOMEN

If you have a medium frame and your height is: * 5 foot, you should weigh between 103 and 115 pounds. * 5-1, between 106 and 118. * 5-2, between 109 and 122. * 5-3, between 112 and 126. * 5-4, between 116 and 131. * 5-5, between 120 and 135. * 5-6, between 124 and 139. * 5-7, between 128 and 143. * 5-8, between 132 and 147. * 5-9, between 136 and 151.

MEN

If you have a medium frame and your height is: * 5-6, you should weigh between 127 and 140 pounds. * 5-7, between 131 and 145. * 5-8, between 135 and 149. * 5-9, between 139 and 153. * 5-10, between 143 and 158. * 5-11, between 147 and 163. * 6-0, between 151 and 173. * 6-1, between 155 and 173. * 6-2, between 160 and 178. * 6-3, between 165 and 183.

Source: The Metropolitan Life Insurance Co. height and weight tables, which draw on data from a 1959 study.