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A New Bill in the New Jersey Senate Would Ban Employment Discrimination on the Basis of Height and Weight

Society is continuing to evolve and, with it, so is our understanding of what things employers should be allowed to consider — and, more importantly, should not be allowed to consider — in making employment decisions. In New Jersey, those protected characteristics currently include gender, race, religion, ethnicity/national origin, sexual orientation, gender identity, and several others. If a new bill the New Jersey Senate becomes, that list will expand to include height and weight, as well. Whatever protected class you’re a member of, if you’ve endured illegal discrimination at work, you should act promptly to get in touch with a knowledgeable New Jersey employment discrimination lawyer.

Three years ago, this blog looked at the case of a Passaic County bus driver who pursued a hostile work environment case. The man lost because the alleged discrimination underlying that hostile environment was the result of the driver’s weight. The courts concluded that New Jersey law doesn’t recognize weight as a protected class and obesity alone doesn’t constitute a disability, even if that worker’s obesity was extreme. (The bus driver in Passaic County was a man who weighed 500-600 pounds.)

That rule could soon change. Andrew Zwicker, a state senator representing Middlesex County, proposed an amendment to the New Jersey Law Against Discrimination (NJLAD) that would add both weight and height as protected characteristics. The bill would include an exception that would allow employers to consider height and/or weight in situations where “the height or weight of an individual is a bona fide occupational qualification.”

If Sen. Zwicker’s bill becomes law, New Jersey would become the second state to ban this sort of discrimination. Michigan law has banned weight discrimination since 1976. New York State has considered bills banning weight bias since 2018 but, as of this date, none have become law.

The effects of this kind of discrimination — especially discrimination against overweight people — are real. A study quoted in a University of Connecticut report found that overweight people were “12 times more likely to report weight-based employment discrimination compared to thinner adults.”

Weight Discrimination as a Form of Disability Discrimination

New Jersey workers who are overweight should keep in mind that the law, even as it now exists, possibly can protect them in significant ways. In the bus driver’s case, he provided the courts with no evidence that his obesity had any sort of underlying medical basis, which contributed to his case’s ultimate lack of success.

However, for many significantly overweight people, there is an underlying medical component. People who have type-2 diabetes, polycystic ovary syndrome (PCOS), insulin resistance, hypothyroidism, Cushing’s syndrome, or Prader-Willi syndrome often experience obesity as a result of their disease. Others become overweight because they have a disability that substantially restricts their level of physical activity. When either of those is true, proof of the underlying disease or condition can potentially open the door to using the hostile treatment you received due to your weight as the foundation of a disability discrimination case under the NJLAD (or federal law.)

For still others, the trigger isn’t the disease, it’s the treatment. Certain anti-depressant, anti-seizure, and hypertension medicines (as well as some antihistamines and corticosteroids) can cause weight gain and, like the disabilities listed in the paragraph above, possibly form the basis of a valid disability discrimination case.

The Interconnection Between Weight Discrimination and Gender

Sometimes, a person’s obesity may tie into a different protected characteristic — gender. Studies have found that both overweight men and women experience discrimination, but some of that research (including a study from Vanderbilt University) found women experience it at higher rates. Other research has found a correlation between weight discrimination and Black women. (Keep in mind that, in New Jersey, your protected class can be an intersectional one, such as Black women or gay men.)

If you can discover, develop, and present strong evidence that your employer took adverse action against you and other overweight people in your class while not similarly acting against overweight people outside that case, then yours could be a viable case under the laws banning gender (or gender-plus-race) discrimination.

Most of us would prefer that employers judge us on the work we do, not the color of our skin or who we choose to love or the number on our birth certificates… or even the number on the bathroom scale. Workplace discrimination that violates the NJLAD (or federal law) can take many forms. Whatever the type, the skilled New Jersey workplace discrimination attorneys at Phillips & Associates are here to help workers harmed by employment discrimination. To get our team started on your case, contact us online or at (609) 436-9087 today to set up a free and confidential consultation.

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