We have written a lot about persons who experience discrimination in employment based either on physical appearance or obesity, and how only one state – Michigan – and only 6 cities prohibit such discrimination. We have also noted that aside from these few laws, a few courts have taken the position that obesity is a “disability” under the expanded ADA definition. See Cook v. Dept. of Mental Health.


An important new working paper drafted by a Vanderbilt University academic suggests that these laws which make the obese a protected class, a la Title VII, are more effective than treating obesity as a disability under the ADA.


But first some background.


Way back in February 2011 we wrote that “according to surveys ‘weight bias’ is widespread in employment, with some reporting that within the continuum of employees who were overweight to severely obese there was a 12 to 100 times more likelihood of discrimination.” We also wrote that surveys show that so-called "beauty bias," or "appearance discrimination" exists in the workplace to a large degree.


More recently, a report about a Texas Medical Center which instituted a policy that requires potential employees to have a body mass index (or “BMI”) of less than 35 provided anecdotal evidence of such discrimination. The Texas Medical Center policy states that an employee’s body “should fit with a representational image or specific mental projection of the job of a healthcare professional,” including an appearance “free from distraction” for hospital patients.


Finally, in May we reported on a scientific study cited in the International Journal of Obesity which found that “strong obesity discrimination was displayed across all job selection criteria, such as starting salary, leadership potential, and likelihood of selecting an obese candidate for the job."


Now, a study undertaken by attorney and economist Jennifer Shinall has found that “the evidence suggests that at least two of the local laws” “have improved employment outcomes for the obese.” The local laws in Urbana, Illinois and Madison, Wisconsin are effective, she claims, because in those cities persons with claims of physical appearance discrimination may file a charge with a local agency which does all of the investigation and handles the complaint in its entirety. “These two jurisdictions, Madison, WI and Urbana, IL, have unique enforcement mechanisms that make it easy for discrimination victims to seek relief.”


Shinall suggests that the ADA’s 2008 amendments which broadened the definition of disability are unlikely to improve employment outcomes for the obese, and that the Cook case, although 20 years old, has not improved employment outcomes for the obese.

Her conclusion is that “any future law that seeks to improve labor market outcomes for the obese should be modeled after these two laws.”