Can an employer discriminate against an obese applicant or employee?

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My big fat bias complaint
February 03, 2004|By JAMES OTTAVIO CASTAGNERA

I SAT IN bed on a recent Sunday, sipping my coffee while I read the morning paper. Then I spotted the headline, and my morning calm was shattered:

"An unrivaled hunger? She's 5-foot-5, 99 pounds. Her appetite puts 'voracious' to shame." This petite eating machine can strip 134 buffalo wings in 12 minutes. I glanced at my protruding middle-aged midriff and shouted, "Unfair!"

Since the federal 1964 Civil Rights Act was passed, followed by the Age Discrimination in Employment Act in '67, the long arm of the law has wielded a shield to protect minorities, foreigners, women, Branch Davidians and geezers from disparate treatment. As an employment lawyer and citizen, I say, "Good!"

But as one of the majority of Americans for whom the Battle of the Bulge has nothing to do with World War II, I say what about us? That some truly huge guys can be in danger of being humiliated by a 99-pound chick is symbolic of the sad state of affairs for all us chubbies.

I thought the Americans with Disabilities Act would stretch the law's long arm around our bulging bellies. But a dozen years and uncounted lawsuits later, even morbid obesity can come out on the light side of a legal action. (Here's what one federal judge said just last month in the case of a fat foreman fired by Asplundh Tree Experts: "Except in special cases where the obesity relates to a physiological disorder, it is not a 'physical impairment' . . ."

That "physiological disorder" bit makes my stomach rumble. What of the rest of us for whom dieting causes severe mental distress? Except for a cholesterol issue handled by a little pink pill, I have no "physiological disorder." Neither do my many large-sized friends, relatives, co-workers and acquaintances.

So we remain the unprotected victims of invidious discrimination. On Page 2 of my Sunday paper, I learned that the mayor of New York can get away with saying of a deceased actress, "Big gal . . . she ate everything but the drapes." Mayor Bloomberg even blasphemed the late, great Doc Atkins, suggesting that the messiah of the meat diet was himself a fatty.

The, thankfully, I reached the travel section - and an ad for a new Caribbean resort catering to a "larger" clientele.

Big deck chairs, big doorways, big portions. Utopia.

Let that little gal gobble her wings. Let the law languish. Let Mike Bloomberg laugh. I'll just get on the Internet and make my reservation.

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