Massachusetts may be on the brink of passing a law prohibiting employment discrimination based on height and weight.  This would be some big news if it happens.

One commentator noted some time ago 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 have written a number of posts about what has been referred to variously as “beauty bias,” “weight discrimination,” “lookism,” “unattractiveness bias,” and/or “appearance bias.”

And way back on February 11, 2011, we asked: “Should employment discrimination based upon weight or appearance be illegal?”

The last we looked, only one state – Michigan (and six cities) outlawed weight discrimination in employment.

On July 9, 2012 we posted a piece entitled: Unattractiveness – The Next Workplace Protected Class? and said that “A lot has been written lately (in legal blogs, at least) about what some call “beauty bias” – but which we have recently called “appearance bias” — workplace bias based upon appearance. Obesity bias seems to be the most frequently observed manifestation of this.”

The EEOC has taken the position that weight discrimination may violate the Americans With Disabilities Act (“ADA”), if, for example, the employee’s weight substantially impairs a major life activity. Moreover, it may be coupled with conditions caused or exacerbated by obesity, such as hypertension or diabetes, which have been held to be disabling.

We also posted that the recent decision of the American Medical Association to declare obesity a disease would likely spur lawsuits under the ADA: “the AMA’s action last week is sure to inspire a spate of new suits which claim that the disease of obesity is a disability under the ADA — citing the American Medical Association.”

On March 6, 2013 we wrote that the Utah Legislature considered a bill which would have prohibited employment discriminating based on height and weight.  The bill’s sponsor was not discouraged when it was voted down by a margin of 10-4 – he said that “We start it with race, color, religion, age discrimination, those types of things. It’s a starting point. Weight and height is just a starting point that, eventually, we’ll get to that point when we have legislation that’ll address those issues.”

Now it has been reported that the Massachusetts Labor and Workforce Development Committee has voted to recommend passage of a bill (H 1758) which would prevent discrimination based on height and weight, by employers, labor organizations, employment agencies, landlords or real estate agents.

Dr. Scott Butsch, of the digestive health care center at Massachusetts General Hospital testified before the committee “that he has treated ‘countless’ patients who … are unaware they are being discriminated against until after they lose weight and are given promotions or new opportunities at work.”  He said that he believed that “weight discrimination stems from the common belief that obesity is a character flaw,” and that weight bias has become “socially acceptable.”

However, the one legislator who voted against the bill “expressed concern about how the legislation would affect people who are no longer able to perform their duties because they had gained weight.”

My partner Christina noted a while ago that many employers may be passing up star performers because of their obesity.

Soon they may not be able to by action of law.