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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| February 6, 2017

PLUS SIZED? MICHIGAN LAW PROTECTS EMPLOYEES WHO ARE OVERWEIGHT

QUESTION: I work as a waitress at a sports bar. About a year ago, I started taking a prescription medication for a respiratory disorder, and began to gain weight. Over a six month period, I put on about 20 pounds. The weight gain slowed down, but I’m still having trouble controlling my weight. Last week, my boss at work told me that I need to lose about 15 pounds quickly, or he will let me go. He says our customers want to be served by fit waitresses, not fat ones. Is this legal? I’m still within a healthy weight range (although near the top end) for a person my height.

ANSWER:     Lucky for you, you live in Michigan, one of the few states that protects workers from discrimination in employment based on weight. The Elliott-Larsen Civil Rights Act, MCL 37.2202, says it is illegal for an employer to “fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment compensation because of religion, race, color, national origin, age, sex, height, weight, or marital status.”

And, cases such as yours this prohibition has been upheld. In 2010, the Macomb County Circuit Court, on facts similar to those in your case, found a waitress at Hooters had presented a valid claim of weight discrimination under the Elliott-Larsen Civil Rights Act (ELCRA), where she was told to lose weight or be fired (the waitress was 5’8” and weighed 132 lbs, a healthy weight). But, there is little published case law in Michigan in this area.

The legislator responsible for adding “weight” to the list of protected categories in the ELCRA back in 1976, did so, according to one source, because he was “flabbergasted” by the number of cases in which qualified women seeking office jobs were unfairly denied work because they were overweight.

However, bringing a claim of weight discrimination in Michigan is not the slam-dunk you might expect. When it comes to appearance, courts are often unwilling to interfere with an employer’s decision to institute dress codes, appearance guidelines, or grooming policies to regulate appearance in the workplace. Some court decisions finding weight requirements legal are based on an employer’s ability to argue that physical fitness is a bona fide occupational requirement, or on the employer’s ability to show that workers knew what they were getting into when they signed on.

To determine the strength of your claim, an attorney would want to review your employment application, and the employee handbook, as well as review other laws that might be relevant. For instance, since your weight gain was caused by prescription medication, the Americans with Disabilities Act might apply, and, if male servers are held to lesser standards of appearance, a case of sex discrimination might be presented.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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