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GARY FELDMAN AND JUDITH ASHTON

Jumping the gun on weight discrimination

ARGUING THAT overweight people are stigmatized in the workplace and elsewhere, 11 Massachusetts representatives have filed a bill to make it unlawful in the Commonwealth to discriminate on the basis of weight in employment, housing, and public accommodations. In support of this bill, they have issued a press release citing studies that make claims that discrimination against the overweight is rampant.

At first glance, the proposal may seem reasonable. Who could favor discrimination? As management lawyers, we urge employers and others to make personnel decisions based on relevant qualifications, not stereotypes.

But if passed, this measure would make bad law and bad public policy, and its enactment would also divert scarce state resources from serious issues. This bill is unwise and should not become law.

For centuries, a basic tenet of American law has been that businesses have had the freedom to choose employees and those with whom they wish to deal. Wisely, because of pervasive and invidious historical discrimination against certain classes of people, the law has made exceptions. Thus, discrimination on the basis of race, sex, religion, ancestry, and sexual orientation is forbidden.

And state law makes provision for people who suffer from obesity that has a physical cause and that substantially limits their life activities. These individuals not only have the right to claim discrimination on the basis of a disability, but also to receive reasonable special accommodations, if needed.

But the sponsors of the proposal seek to protect individuals based merely on "weight" -- as if weight were immutable and worthy of protected status on par with an individual's race or sex.

The bill's sponsors have produced no evidence of widespread discrimination against persons because of their weight. They cite a number of studies that suggest discrimination against overweight people. However, none of these studies are credible. Many involve surveys of college students who have never hired or fired anybody and who are less accepting of larger-sized people than more mature adults. Other studies are dated, use incredibly small samples, or simply do not establish pervasive discrimination.

The major studies available do not look at real-life employment practices; few of them include examination of real experiences of overweight people; and these use varying definitions of "overweight."

Only one state, Michigan, has adopted an anti weight discrimination law. Neither the federal government nor any of the other 49 states has followed suit in the three decades since Michigan's law took effect.

If the measure were approved, every person in Massachusetts would have a basis to bring a claim for "weight" discrimination. Because a complainant need not establish a specified amount of excess weight most residents could file a complaint based on overweight discrimination.

According to statistics from the Massachusetts Department of Public Health, more than 56 percent of residents are overweight and 21 percent are obese. Additionally, as the bill stands, a person with what is considered an ideal weight, and even one who is slim, would be covered.

Finally, the costs of implementing such a law would be substantial for taxpayers. The Massachusetts Commission Against Discrimination already struggles to assist those who have made claims under existing laws. Our courthouses are not only crumbling but they are also drowning in cases awaiting trial. To add new cases under a new law without any solid evidence that the law is needed is unconscionable.

The burden this proposed legislation would put on employers, landlords, and others in commerce, would be substantial. It is no answer to state that a defendant who can establish that discrimination did not occur will be exonerated by the court system. Defense costs in discrimination cases are astronomical, win or lose.

The Legislature would be wise to use the state's scarce resources elsewhere -- to eradicate very real discrimination that persists, to educate our citizens about nutrition and fitness, to provide access to fitness activities, and to teach our youngsters to respect themselves and others regardless of body size.

Gary M. Feldman and Judith Ashton are employment lawyers at Davis, Malm & D'Agostine, P.C., a Boston law firm.

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