Oct 9

The Skinny on San Francisco’s Ban on Size Discrimination

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The Fair Employment & Housing Act (FEHA) bans job discrimination based on any of 15 characteristics. ((Gov. Code §§12940(a), (d).)) Height and weight aren’t among them. But study after study shows that size discrimination is real. In fact, a Yale study showed that it was as common as racial discrimination. ((Rebecca M. Puhl and Chelsea A. Hauer. The Stigma of Obesity: A Review and Update, 17 OBESITY 5, 941-964 (Sept. 6, 2012).)) Size discrimination can have “big” consequences. Health Economics reports that overweight people earn 6% less than thin people in comparable positions. ((Charles L Baum and William F. Ford, The Wage Effects of Obesity: A Longitudinal Study, 13 HEALTH ECONOMICS 9, 885-899 (Sept. 2004).)) Similarly, the Journal of Applied Psychology reports that an increase in height for men corresponds to an increase in income after controlling for other variables like age, sex, and weight. ((Judge, A. T. & Cable D. M. The Effect of Physical Height on Workplace Success and Income: Preliminary Test of a Theoretical Model, 89 JOURNAL OF APPLIED PSYCHOLOGY, No. 3, 428–441 (2004).)) More to the point, The Economist reports that 90% of CEOs are taller than average. ((Short Guys Finish Last: The World’s Most Enduring Form of Discrimination, THE ECONOMIST (Dec. 23, 1995).))

San Francisco is one of four jurisdictions that expressly prohibit size discrimination. Section 3303 of the San Francisco Police Code prohibits any employer with at least five employees, including the owner and any supervisors, from: (1) discriminating in the recruitment, selection, training, promotion, and termination of employees based on their height or weight, or in the recruitment, engagement, use, or termination of independent contractors based on their height or weight; ((SFPC §3303(a)(1), (4).)) or (2) printing, publishing, advertising, or disseminating any notice or advertisement that indicates an unlawful discriminatory preference based on height or weight. ((SFPC §3303(a)(5)(ii).))

I. The Prohibition Against Size Discrimination in Employment

The anti-discrimination provision of Section 3303 is extremely broad, reaching every imaginable employment practice. For example, an employer can’t banish a receptionist from the front desk because she is overweight, underweight, or even average weight. The fact that the employer might’ve replaced her with someone of the same height and weight isn’t a defense; not everyone’s proportions are the same. Thus, an employer who hires someone who carries her weight in her breasts and buttocks still violates section 3303 if he refuses to hire someone who carries her weight in her abdomen.

Similarly, the advertisement provision of Section 3303 prohibits an employer from indicating an unlawful discriminatory preference based on height or weight. For example, an employer who posts a Craigslist ad for a “slim waitress” or a “tall, dark, and handsome” employee would violate Section 3303 (and probably FEHA’s prohibition against sex discrimination). Likewise, an employer who posts a bulletin that reads “No Fat Chicks” or that merely encourages people to “lose weight” would also violate section 3303. In contrast, a poster or internal e-mail that encourages all employees to be healthy and fit and prevent diabetes probably wouldn’t violate Section 3303.

II. Height and Weight as Bona Fide Occupational Qualifications

That doesn’t mean an employer can’t have appearance standards at all. Section 3303 permits discrimination based on height or weight if: (1) discrimination is in fact a necessary result of a bona fide occupational qualification (BFOQ); and (2) no less discriminatory means of satisfying the BFOQ exists. ((SFPC §3303(b)(2).)) Proving a BFOQ is a “tall order” because the exception is extremely narrow. ((Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991).)) The alleged BFOQ must be reasonably necessary to the normal operation of the business. ((25. 42 U.S.C. § 2000e-2(e)(1) (2000).)) Thus, a BFOQ can’t be based on stereotypical assumptions about a particular class, ((Johnson Controls, 499 U.S. at 206-07 (holding that gender was not an acceptable BFOQ where women were prevented from working in jobs involving a high risk of lead exposure unless they could provide documentation of infertility).)) but on facts that all or substantially all of the class would be unable to perform the job safely and efficiently. ((See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 333-34 (1977) (stating that sex cannot be a BFOQ if the exception is the defendant bases it on a stereotypical characterization of the sexes).))

For example, thinness isn’t a BFOQ for being a waitress because her weight has nothing to do with her ability to serve food. The fact that the waitress’ weight or body type might turn off customers who frequent the restaurant mainly for the waitresses’ sex appeal or buxomness plays no role in the determination of whether weight is a BFOQ. ((Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971).)) Height is also unlikely to be a BFOQ for any job – except, perhaps, when the job is to be the star of a midget porn. But even that’s far from certain. Furthermore, minimum height standards often disproportionately impact female job applicants and can therefore amount to sex discrimination.

III. Associational Discrimination and Other Ancillary Code Violations

Even if an employer doesn’t discriminate against an employee, job applicant, or independent contractor based on his height or weight, the employer can still be liable for discrimination by association if he refuses to hire, terminates, or otherwise takes adverse action against him based on his associate’s height or weight. Section 3305.2(a) prohibits any person from committing any of the acts that violate Section 3303 (e.g., refusing to hire someone based on height or weight) because the employee, job applicant, or independent contractor associates with someone who has, or the person perceives to have, a particular height or weight. ((SFPC §3305.2(a).))

Likewise, Section 3305.2(b) prohibits any person from retaliating against an employee, applicant, or independent contractor by committing any of the acts that violate Sections 3303 or 3305.2(a), at least partly because that person: (1) opposes any act or practice that violates either of those provisions; (2) “supports” either of those provisions or the enforcement of those provisions; (3) files a complaint with the San Francisco Human Rights Commission or any court for violation of either of those provisions; or (4) testifies, assists, or participates in any investigation, proceeding, or litigation under either of those provisions. ((SFPC §3305.2(b).))

The penalties against those violate or aid in the violation of Sections 3303 or 3305.2 are hefty. Section 3306 provides that any person who violates either of those provisions or who aids in the violation of those provisions “shall be liable” for three times the amount of the plaintiff’s special and general damages. Thus, a plaintiff who incurs $1,000 for psychotherapy, loses $10,000 in earnings, and experiences $10,000 in pain and suffering because her employer fired her for gaining weight will be entitled to $63,000 in treble damages. In addition, the court can award $200 to $400 in punitive damages, as well as attorney’s fees and litigation costs. ((SFPC §3306.))

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.