Claim Weight Discrimination

Both state and federal laws, primarily the Americans with Disabilities Act (ADA) protect employees in the U.S. from being discriminated against as a result of their disabilities. Under the ADA, you have the right to request "reasonable accommodations" for your disability, and your employer must provide them in most circumstances. In some situations, obesity does qualify as a disability under the ADA, giving you protection from discrimination. If you are the victim of harassment or discrimination at work because of your weight, you can file an administrative charge and claim weight discrimination.

Steps

Requesting Reasonable Accommodations

1. Visit your doctor. Being overweight can be a disability, but it isn't always considered a disability that would entitle you to protection under the ADA or other state anti-discrimination laws. Your doctor can help evaluate your condition for the purposes of disability law.
   • For your obesity to qualify as a disability, it must "substantially limit a major life activity." Major life activities, under the law, include things such as walking, standing, or breathing.
   • While extreme or morbid obesity typically qualifies as a disability in and of itself, simply being 30 or 40 pounds overweight does not qualify as a disability on its own.
   • However, if you have some other disease or condition, such as diabetes or a thyroid condition, that causes weight gain, you still might qualify as having a disability under the law.
   • Your doctor can help you determine whether your condition qualifies as a disability, and what reasonable accommodations you should request. You also may be spent to a specialist.
2. Determine what accommodations you need. Before you request reasonable accommodations, look at your workplace and determine what you need. Keep in mind that you cannot request that your employer lower its production standards or remove any of your job responsibilities.
   • You also can't demand that your employer provide personal assistance devices. For example, if you need a mobility scooter, you may need hallways or entryways widened so you can get around in your scooter, but your employer has no obligation to provide you with the scooter itself.
   • In some situations the accommodations may be both simple for you to identify and simple for your employer to provide.
   • For example, if you are a cashier in a retail shop and are required to stand on your feet, it may be that the only accommodation you need is a chair to sit on during your shift.
   • Other accommodations, such as widening a cubicle door so that you can enter and leave your work area without difficulty, may require a little more time and expense on the part of your employer.
3. Speak to a manager or supervisor. You can ask for reasonable accommodations at any time. No specific language or proof is necessary to request reasonable accommodations under U.S. disability law.
   • There aren't any code words that are supposed to trigger the manager to know that you're asking for reasonable accommodations under the ADA. You don't even have to mention the ADA.
   • Make sure you discuss the matter with somebody who has the power to make the changes you've requested.
   • If you're not sure, ask the manager or supervisor with whom you're most comfortable. You can find out to whom you should direct your request – and they might even help you make it.
   • If the person with whom you speak says they have to talk to someone else about it, insist on accompanying them. You have no control over conversations that happen out of your presence, and you should be the one making your needs known.
4. Consider making a written request. Even though you're not legally required to make your request in writing, your employer may request it. You also may want to make a written request to keep a record of it, particularly if you anticipate it will be denied.
   • Unlike an oral request, when you make a written request you probably do want to mention that you are seeking reasonable accommodations under the ADA.
   • You aren't obligated to go into detail about your disability – it's enough to simply say you have one. However, you may want to describe your disability in basic terms.
   • If you do include a description of your disability, make sure you identify it correctly. Don't identify obesity as your disability unless a doctor has judged it a disability in and of itself.
   • If, instead, you have an underlying condition that causes weight gain, name that as your disability.
   • Describe the accommodations you need specifically, and explain how these accommodations will help you do your job.
5. Provide medical certification of your disability. Upon receiving your request, your employer has the right to request a healthcare provider certify your disability and your need for reasonable accommodations.
   • The U.S. Department of Labor has a form your employer may use. The information to which your employer can have access is rather limited.
   • Your doctor cannot provide information to your employer without your consent, and your employer will not be able to contact your doctor directly.
   • The only information your employer can learn is that you have a disability, what that disability is called (or your diagnosis by your doctor), and whether the accommodations you described and requested would enable you to perform your job.

Gathering Evidence of Discrimination

1. Keep a diary. A diary or journal allows you to write about each altercation or discriminatory comment as soon as possible after it happens. This is particularly important if comments or discriminatory behavior is ongoing.
   • You can use a basic notebook from a discount store or office supply store. Put your name and the name of your employer somewhere on the front, along with the date you started the journal.
   • Each time someone says something or does something discriminatory, make a new entry in your journal. Date and sign each entry.
   • Include as many details as possible, including the time the incident occurred and the names of anyone present.
   • These are details you are likely to forget if you wait several weeks before trying to recount the incident.
2. Talk to your co-workers. Eyewitnesses to comments or behavior may have additional information about the incident. You also may find other employees who have faced similar discrimination because of their weight.
   • Because of the stigma of being overweight, it may be difficult to find co-workers who are willing to take your side.
   • For example, someone may concede that the comments were mean, but say something about how you really should lose weight.
   • Other people in your workplace who are overweight may be more sympathetic, and also may have stories of their own.
3. Save all communications. Although examples of blatant, direct discrimination may be rare, any documentation of the discrimination you're facing should be preserved as evidence. Keep print copies of electronic communication in a file.
   • This includes communications that don't directly reference your weight, but that could be used as evidence that you are being discriminated against in your workplace for that reason.
   • For example, if you are passed up for a promotion, save all communication related to that, including the information you submitted to the company when you applied for the promotion and anything said to you.
   • If your supervisor recommends you for a promotion and says that you are the ideal candidate for the position, and you later learn that someone less qualified than you has been chosen, your supervisor's comments can support your argument that you were discriminated against.
   • Keep in mind that refusing to provide you with reasonable accommodations for your disability also is considered discrimination. If you requested accommodations and were refused, keep any communication related to that.
4. Evaluate how other employees are treated. Direct evidence of discrimination is rare. However, you also can use circumstantial evidence based on how certain types of employees are treated compared to you and other overweight employees.
   • This argument is referred to as a "disparate impact" analysis. Your employer may use criteria to evaluate employees that on their face have nothing to do with weight – but have the result of disproportionately impacting overweight employees negatively.
   • Physical fitness requirements for certain positions may be considered to have a disparate impact if the level of fitness required is not necessary to complete the job requirements.
5. Consider consulting an attorney. While it's not necessary to hire an attorney this early in the process, it can help to talk to someone so you understand the types of evidence you'll need to prove you're being discriminated against because of your weight.
   • Look for an employment law attorney who has experience representing employees who have faced discrimination in their workplace.
   • Keep in mind that obesity as a disability under the ADA is a relatively recent phenomenon – courts before 2012 were not accepting obesity as a disability unless it was caused by some underlying condition.
   • For this reason, an attorney's advice can be invaluable in understanding what evidence you will need to prove discrimination and how you should structure your allegations on your administrative charge.
   • Even if you're not planning to hire an attorney at this stage, it can't hurt to talk to someone – and most employment law attorneys will offer a free initial consultation.

Filing an Administrative Charge

1. Check your eligibility to file a charge. Federal anti-discrimination laws are enforced by the Equal Employment Opportunity Commission (EEOC). Before you file a charge with the EEOC, confirm your employer is covered and you are eligible to file a charge.
   • The EEOC has an online assessment tool on its website that you can use to determine whether you're eligible to file a charge.
   • The tool asks several questions about you, your employer, and the discrimination you've experienced. Then you can find out if you're eligible to file a charge.
   • However, keep in mind that finding out your eligible is not the same as actually filing a charge. You still must complete additional forms to initiate the administrative charge process.
2. Complete the intake questionnaire. Provided you're eligible, download the intake questionnaire form from the EEOC website and fill it out. You also can get a copy of the form by visiting the nearest EEOC field office.
   • The form begins with questions about you and your employer. Then you must provide a description of the discrimination you've experienced.
   • Stick to the facts in your description, and be as detailed as possible. Include dates, times, locations, and the names of anyone involved or present when the incident took place.
   • Make sure to sign and date your questionnaire, and make at least one copy of it to keep for your own records.
3. Submit your intake questionnaire. You can mail your completed questionnaire along with any supporting documentation to the local field office. You also have the option of taking your paperwork into the field office in person.
   • You also can call 1-800-669-4000 and give your information over the phone. The operator will transcribe the information and forward it to the EEOC field office nearest you.
   • However, the most efficient option generally is to take your questionnaire to the field office in person, and the EEOC recommends that you do this if you live within 50 miles of an EEOC field office.
   • Keep in mind that you only have 180 days to file a charge from the date the discrimination occurred. Don't delay in submitting your intake questionnaire. If another incident occurs, you can always update your information to include that incident.
   • When you submit your questionnaire, it will be assigned to an EEOC agent. If you mailed your questionnaire or initiated your charge over the phone, that agent will call you within 30 days.
   • If you take your questionnaire to the field office in person, you typically can talk to an agent the same day you submit your questionnaire.
4. Cooperate with the EEOC investigation. The agent working on your charge will request a written response from your employer. Based on the content of that response, the agent may launch an investigation into the discrimination you allege you've experienced at work.
   • You typically won't have any access to the response itself, although the EEOC agent may ask you questions based on it.
   • The agent also will seek additional information from you about the allegations you've included in your original questionnaire. Be prepared to hand over your journal, as well as any documents or communications you've saved that are related to the discrimination.
   • Keep in mind that while all this is going on, federal law prohibits your employer from retaliating against you in any way for filing a charge. For example, your employer cannot decrease your hours, or demote you.
   • If your employer does anything that you suspect is retaliation, tell the EEOC agent assigned to your case about it immediately.
5. Attempt mediation. Typically, EEOC agents will try to convince you and your employer to resolve the problem through mediation. Based on the outcome of the investigation, the agent may have some recommendations regarding how the dispute should be settled.
   • There's no need to hire an attorney to represent you during the mediation – the session is informal and designed to level the playing field between the parties.
   • However, if you feel uncomfortable or if you know your employer is represented by an attorney, you may want to hire somebody to help you feel more secure.
   • A neutral third-party mediator will work with both you and your employer in an attempt to negotiate a compromise that is mutually satisfactory.
   • Although the entire process is voluntary, meaning there's no requirement that you reach a settlement at all, any settlement you do reach is legally binding.
   • If you are able to reach a settlement, the mediator will draw up a settlement agreement for both parties to sign. Make sure you read it carefully and understand it before you sign it.
   • If you are not able to reach a settlement through mediation, consult an attorney about the possibility of filing a lawsuit against your employer.

References

See also

• Explain a Disability on a Job Application Form
• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Verify Rehab Treatment for an Employee
• Handle Disciplinary Actions
• Know if You Should Sign a Covenant Not to Sue
• Defend Yourself in a Wrongful Termination Lawsuit
• File Charges With EEOC
• Defend Yourself in an Asbestos Exposure Lawsuit

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