A primer to size-related employment discrimination

By Sally E. Smith

When Jamie Ferguson walked into the human resources department of the Mays store in her local mall last summer, she had every reason to believe she would walk out with a job. Although she was only 18, the Missouri native had a solid employment history. Ferguson had previously worked at a gas station and an antiques store, and been a shift manager at a pizza restaurant. In fact, during Ferguson's on-the-spot interview with a woman in personnel, she was told that many positions were open and that the store desperately needed summer help. While her interviewer wasn't in a position to offer Ferguson the job, she told her to wait so the store manager could see her.

When the manager walked into the room, Ferguson recalls, "She looked me up and down and said, 'I don't think we have any positions open in the store at this time.'" When Ferguson attempted to tell her that the first interviewer had described various job openings, Ferguson says the manager "looked at me and said, 'Have a nice day.'"

Had Ferguson just been denied a job because of her size? At first, she wasn't sure. "At the time, I was just really upset. I didn't know what I might have done wrong." As she thought more about it, though, her perspective began to change. "The first woman who interviewed me was a large woman, but the store manager was tall and thin." Reflecting upon the way she had been summarily dismissed by the manager, it occurred to Ferguson, who now attends Jefferson Community College in Hillsboro, Mo., that the welcome mat had been ripped away because of her weight.

Unfortunately, Ferguson's experience has an all too familiar ring to many plus-size women. In a study conducted by Esther Rothblum, Ph.D., Professor of Psychology at the University of Vermont, almost a third of women who weighed was 20-49% above standard height/weight charts and almost two-thirds of women who weighed 50% or more above chart weights reported that they had faced discrimination in hiring because of their size. According to Rothblum, who is arguably the nation's top research on weight-related social stigma and discrimination, "The heavier people were, the more they reported that they couldn't get a job." Her study also found that, while heavier men also reported discrimination in hiring, women were discriminated against at a much lower relative weight. "Women don't have to weigh very much before discrimination kicks in," Rothblum notes.

Hiring isn't the only workplace arena where plus-size women face prejudice. In Rothblum's study of employment discrimination, almost eight percent of large women and 31% of very large women reported being denied a promotion or a raise because of their size.

Lynnda Collins, who worked as a contract administrator for a business-related software manufacturer, counts herself among those women. When a job opening arose for an administrator to handle international contracts, Collins thought she had it in the bag. With a B.A. in Spanish and a graduate degree in Romance Languages, the Duluth, Ga., resident felt that her ability to read and understand French and Spanish, as well as her working knowledge of Italian and Portuguese, would be tremendous assets in communicating with the company's international employees and clients. She'd also been with the company for 12 years and had a documented outstanding record of productivity.

Even though her background and experience made her a good fit for the position, Collins says, "The job was given to someone who didn't know any language other than English. When that person had to deal with the foreign languages, she would come to me. I ended up doing a lot of the work of the job, even though I didn't get the job myself."

Although she did advance during her tenure with the company, this wasn't the first time Collins had been denied a promotion. "I was passed over for many, many, many promotions - someone else got the job even though I was more qualified." Collins says that, in several instances, she suspected that she had been discriminated against because of her size. "Nothing overt was ever said," she recalls, "but you just know what's going on."

Like 15% of the plus-size women surveyed in Rothblum's study, Collins eventually lost her job. Collins and two other people employed by the company held the same job title. Among the three, Collins and another worker had equal seniority, while the third had been with the firm for about two years. But when her employer downsized, it was Collins who got the pink slip. "I was the one who was laid off, despite the fact that I had been the most productive," Collins says. "I had consistently out-produced [the other workers] in the number of contracts produced each month, the number signed each month and revenues generated each month."

Although she's now working in the same type of position for a different software manufacturer, it took Collins, who in her spare time takes piano lessons, sings in her church choir and writes poetry, nearly ten months to find a new job. Time and again, she says, "I talked to [a potential employer] on the phone, they would have read my rÈsumÈ, and they'd be ecstatic. 'We've got to get you in here,' they'd say. But then I'd walk in for the personal interview and the wall came down." Although she'd go into the interview well dressed, clean, neat and self-confident, Collins says, "You'd see a veil come down over their eyes. I'd get the obligatory five to ten minutes, they'd ask a few [perfunctory] questions, and they'd say, 'Thank you very much. We'll be in touch.'"

Legal Recourse

Neither Jamie Ferguson nor Lynnda Collins confronted the companies with their suspicions that they had been discriminated against because of their size. Ferguson, who lives at home with her parents, five sisters and a brother, says, "I couldn't really file any formal complaints because [the interviewer] was the store manager. I felt helpless." Collins didn't make waves about being passed over for promotion because "I didn't want to take the chance of being told 'Here's the door. You can leave now.'" After losing her job, Collins said she thought about taking legal action, but felt that, because litigation is lengthy and costly, "it would have been a lost cause."

Not only are Ferguson's and Collins' reactions typical of plus-size women who have been discriminated against in employment, they're not without some justification. In the United States, there is no uniform law that prohibits size discrimination in employment. According to Sondra Solovay, attorney and author of Tipping the Scales of Justice: Fighting Weight-Based Discrimination, a classic example of the conundrum of those trying to fight back are the cases of Toni Cassista and John Rossi. Cassista was denied a job at Community Foods in Santa Cruz, Calif., because of a perception by the employer that she wouldn't be able to physically perform the job functions because of her weight. John Rossi was fired from Kragen Auto Parts in Berkeley, Calif., for being too heavy after working there for ten years. Cassista argued in her lawsuit that, although she was able to do the work, Community Foods perceived her as disabled. The suit wound its way through the legal system all the way to the California Supreme Court, which decided against Cassista. Rossi, on the other hand, argued that he was disabled by his weight, and that Kragen discriminated against him because of his disability. Rossi won $1,000,000. "Toni Cassista was unsuccessful," says Solovay, "but about an hour's drive away in Berkeley, John Rossi won a million dollars."

Solovay says that the starkest example of uneven legal protections for people of size is in the San Francisco Bay Area. While the City of San Francisco last year enacted an ordinance prohibiting weight discrimination, there is no such law on the books in Oakland. "You land on one side of the Bay Bridge," says Solovay, "and it's illegal for you to be discriminated against because of your weight. You land on the other side of the bridge, and it's a tough fight."

Indeed, Solovay is aware of only four jurisdictions where people of size are protected by employment discrimination laws: the State of Michigan, the District of Columbia, the City of Santa Cruz, Calif., and the City of San Francisco. The protections in the 1977 Michigan law, known as the Elliott-Larsen Civil Rights Act, came about haphazardly. The drafters of the bill threw in every conceivable type of discrimination, and "height and weight" survived the arduous path through the legislature, during which time other protections, such as sexual preference, were amended out. The Washington, D.C., statute is broader, banning discrimination based on "personal appearance." While this law may protect people of size, it actually sprung from the experience of an African-American woman who had been discriminated against because of her hairstyle. The Santa Cruz ordinance was a direct result of the Toni Cassista case, and the San Francisco law was enacted due to the efforts of size activists in the Bay Area.

Solovay is quick to point out, though, that women who don't live in a jurisdiction that prohibits weight-based discrimination can explore other avenues of redress when they've been discriminated against. First, she suggests, talk to an attorney in your area. "Don't assume there's no legal recourse. A law may be out there, but may have slipped under the radar," she says.

You may also be protected under the Americans with Disabilities Act. According to Solovay, "The ADA and other disability laws may apply to people all sizes of large. You could be ten pounds over the height-weight charts, and if the ten pounds is from a condition covered by disability law, you would be covered." Although you may not think of yourself as disabled, Solovay notes that "The legal definition of disability and the lay definition of disability are different, so it's important to be thorough."

Still, the application of the disability rights laws has been extremely uneven across the country, with weight-as-disability arguments swaying some courts and not others. The Cassista and Rossi cases are again good examples. Toni Cassista, who lost her case, vehemently argued that she was able-bodied, and that she was entitled to protection because she was perceived as disabled, which is against the law in California. John Rossi, who won his case, argued that he was disabled by his weight and therefore entitled to protection under disability rights laws.

Two-fers and More

The already slippery slope of size discrimination is further complicated by something called "intersectionality." Intersectionality occurs when size discrimination joins with discrimination based on another factor, such as sex, race, ethnicity, age, disability or sexual orientation. "It's impossible to talk about weight-based discrimination without also talking about [other forms of discrimination," says Solovay. Because there is a higher proportion of people of size in certain populations - more heavy people in certain racial groups, more plus-size women than men and more plus-size women over 55 years old than under, for example - sizism and other "ism's" often go hand in hand.

There seems to be a threshold of bias which people who are large and who are members of another disenfranchised group appear to cross. It's as though being a member of a single group is tolerable, but being plus size on top of that becomes the straw that breaks the camel's back. And, unfortunately, the law doesn't adequately deal with cases of multiple discrimination.

For example, if a plus-size African-American woman is denied a job, she may face a triple bias. Even though an employer refused to hire her due to a combination of the three "ism's" - sizism, racism and sexism - she might not win a lawsuit. The employer could successfully argue that there are other women, other African-Americans and other people of size working for the company, so prejudice was not a factor in his decision. "Discrimination based on weight acts as a loophole for other types of discrimination that we outlaw," says Solovay.

Lynnda Collins, the contract administrator, feels that intersectionality was at play when she lost her job. When one of three identical positions was cut, the 52-year-old Collins says, "I was the oldest of the three [employees] and the biggest of the three, and I was the one laid off."

Collins, an avid reader of science fiction, fantasy, romances and mysteries, takes a moment to reflect upon what the company lost when they laid her off. "I brought in revenues of a couple of million dollars a month," she says. "They also lost my years of experience with contracts, my abilities with languages and my creativity. They lost someone who always went above and beyond the call of duty."

Workplace Harassment

Even if you haven't been denied a job, a promotion or been fired because of your weight, you may have experienced on-the-job harassment. NAAFA, the National Association to Advance Fat Acceptance, regularly receives calls from plus-size women who face a hostile work environment. NAAFA spokesperson Maryanne Bodolay recalls a call earlier this year from a plus-size sheriff's deputy in Southern California. "The woman said that her captain had hung a poster-size cartoon on her office wall, depicting a fat cop eating a donut and stepping on a scale. The cartoon's caption was quite derogatory, and the poster was visible to the entire squad room."

When the deputy told the captain that the poster was offensive and asked her to take it down, the captain refused. When the deputy began what could be termed "whistleblower" activities - taking a picture of the poster and disseminating it - she was retaliated against. "Suddenly," says Bodolay, "her great reviews vanished and she was eventually put on leave."

Sondra Solovay says that, even in the absence of laws that prohibit weight discrimination, there have been several successful cases that have proceeded through the court system using laws prohibiting a hostile work environment. "A lot of these cases are settled, so it's hard to find out what happened," she says. Still, she sees that as an encouraging sign for plus-size women who are harassed about their weight at work. "Even if you think you don't have legal protection, you may get restitution in the form of a settlement."

Why Bother to Fight?

There's no doubt that experiencing weight-based employment discrimination is emotionally devastating. Collins says that being laid off "diminished my self-esteem. I have moments when I feel like nobody's ever going to accept me again." When college student Jamie Ferguson was denied employment due to her size, it prevented her from seeking other jobs. "It did deter me to a certain extent. I didn't work for awhile because I was afraid of being discriminated against."

Attorney Sondra Solovay understands the urge to hibernate after experiencing employment discrimination, but says it's important to remember that "It's not that you've done something bad. Something bad has happened to you. It's really important to remember to feel angry when something wrong is being done to you. If someone discriminates against you because of your weight, they should be held accountable."

If there's no law prohibiting weight-related discrimination in your area, pursuing action against your employer presents an opportunity to change that. Although Toni Cassista, the woman who was refused employment by Community Foods, lost her lawsuit, her community realized they needed an anti-discrimination ordinance - and now there's a law. Solovay says, "In many ways, people who fight weight discrimination are pioneers. This is not a settled area of law - it's an emerging field. The bad news is there aren't a lot of laws in place; the good news is that you have the opportunity to make history."

As a strong advocate of empowerment, Solovay says that, by taking action, "You have the opportunity to take a very ugly incident of discrimination, and, instead of letting it control your life you have the opportunity to make the world a better place by changing the law."

Jamie Ferguson says that, if she faced size discrimination again today, she would do things differently. "I would get on the Internet, and get the word out about the [discriminatory] company. I would become an activist against them." She has chalked last summer's incident up to "life experience," and says, "I'm glad I went through it. Now I know what it feels like [to be discriminated against], and I don't want to go through it again. I will definitely stand up for myself next time."

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