Is being overweight a disability?

The Montana Supreme Court says maybe. in a 4-3 decision, the state's highest court said that obesity without a physiological cause may constitute a physical impairment under state discrimination law. The decision is significant outside of Montana because the high court issued the opinion in response to a question reported by a federal court concerning whether obesity may, by itself, qualify as a disability under the American With Disabilities Act.

The significance of the decision is that obesity has previously been considered a disability only when caused by a physiological disorder or condition. The decision may cause people who are overweight without any underlying disorder or condition to claim they are disabled if they are denied employment opportunities due to being overweight.

Transgender discrimination bill takes effect

On Sunday, Massachusetts became the 16th state in the country to make discrimination on the basis of transgender status illegal in employment, housing, education and lending. The bill was signed into law last January by Governor Deval Patrick, but did not take effect until the new fiscal year which began July 1.

Is hiring "perky" women to increase business illegal?

A local coffee shop is reportedly under investigation by the federal Equal Employment Opportunity Commission for restricting its hiring to young, attractive women. The EEOC has acknowledged that it is investigating Marylou's Coffee, a chain of coffee shops on the South Shore. The coffee shop denies that it discriminates in hiring, but it does not appear to be disputed that the chain employs primarily young, pretty women. The chain's loyal customers and the Boston Herald have jumped to the defense of Marylou's, arguing that private companies should be allowed to hire whomever it wants if it helps increase business. For instance, here's what Herald columnist Michael Graham has to say:


"If you own a business, you hire people who you think will help you make the most money, period. And at Marylou’s, the business model appears to be that, if given the choice of buying coffee from a chubby, grumpy middle-aged guy vs. a cute, bubbly 20-something girl, more people will choose the latter."

The problem with Graham's argument becomes clear when you replace "cute, bubbly 20-something girl" with "white man." It is never legal for a business to discriminate because of the preference of its clientele. If that were allowed, then Jim Crow laws might still be remaining today. I'm sure many business owners in the old South, for instance, might have been fine employing black people if doing so would not have driven off business.

That being said, unattractiveness is not a protected class. If Marylou's only discriminates against people based on looks, that might not violate the law. But as attorney David Belfort told the Herald, "If you're serving coffee, I would think men could serve coffee adequately."

EEOC says federal law protects transgender status

In a precedent-setting ruling, the EEOC last week ruled unanimously that federal gender discrimination law apply to discrimination against transgender people. The ruling held that discrimination against a person based on their gender status is, in fact, sex (i.e. gender) discrimination and prohibited by Title VII of the Civil Rights of 1964. Several federal courts have previously ruled that discrimination against transgender persons amounts to gender discrimination, but the EEOC ruling is particularly significant because the federal agency prosecutes and enforces discrimination laws and thus sets a national standard for their interpretation.

In Massachusetts, the state's discrimination law was recently amended to expressly cover transgender status. The amendment goes into effect July 1, 2012.

Colleges facing increased litigation from both the accused and accusers in sexual assault cases

The Boston Globe published an interesting article on Saturday about the competing demands on institutes of higher education caused by sex-related crimes. On the one hand, institutions face liability from female victims when their policies do not sufficiently protect students from such attacks. On the other hand, accused male students are now beginning to file claims of gender discrimination based on the theory that such policies are biased against male students. This isn't an employment discrimination issue, of course, but it's indicative of the difficulties that decision-makers and employers face in balancing the rights of employees who allege harassment and discrimination versus the rights of the accused.

Iowa judge rejects implicit bias lawsuit

Back in February, I posted about a class-action discrimination lawsuit in Iowa against the state government based on the novel theory of "implicit bias." The claim asserted that the class members could recover for unconscious discrimination in the government's hiring practice and attempted to prove that claim through statistics alone. A state court judge has now rejected that theory and dismissed the case. The judge ruled that the Plaintiffs did not prove that "subjective, discretionary decision-making" caused any discriminatory hiring or promotional decisions. The judge also wrote that there was no legal precedent for the Plaintiffs' implicit bias theory.

Indefinite leave not a reasonable accommodation, federal court rules

Employers are not required to allow indefinite leaves of absence as an accommodation to disabled employees, according to a recent decision from the District of Massachusetts federal court. Whether disability discrimination laws, like the American with Disabilities Act and Massachusetts General Laws Chapter 151B, mandate leaves of absence as an accommodation has been hotly contested. Both laws require that an employer provider a "reasonable accommodation" to disabled employees, provided that the employee can perform the essential job functions with (or without) such an accommodation. What the federal court ruled is that an indefinite leave is not reasonable, and therefore not required. The ruling is supported by a previous ruling by the Massachusetts Supreme Judicial Court. However, as the federal court recognized, a limited leave of absence, and extensions on an existing leave of absence, may be reasonable accommodations under a specific factual situation where there is a definite end date to the leave.