"Weighting" for Protection in Massachusetts: The Myth of Equal Opportunity in Employment

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"This is one of the only groups where an employer could say, 'We don't want fat people' and get away with it...." (1)

I. INTRODUCTION

On January 10, 2007, Massachusetts Representative Byron Rushing introduced legislation to prohibit height and weight discrimination in employment, housing, and real-estate transactions. (2) The bill represents Representative Rushing's tenth effort to address height and weight discrimination in the workplace; however, each year the proposed legislation has failed to reach a vote. (3) Issues of height and weight discrimination have gained increased attention in recent years, and thus Representative Rushing has expressed confidence in the current bill. (4)

Within the past two decades, obesity rates in the United States have increased significantly. (5) A 2007 study revealed that in 2005, 56 percent of Massachusetts adults qualified as overweight and 21 percent as obese. (6) Although Massachusetts has the second lowest rate of obesity in the United States, the rise in overweight adults in the state represented a 40 percent increase since 1990. (7)

Although neither the Massachusetts Commission Against Discrimination (MCAD) nor the Equal Employment Opportunity Commission catalogs weight discrimination complaints, employment lawyers suggest such complaints have increased in recent years. (8) As only one state in the United States, Michigan, treats weight as a protected class, size-discrimination plaintiffs must seek relief under existing remedies; however, thus far these efforts have attained minimal success. (9) For example, in 1994, Gail Gauthier filed a complaint with the MCAD alleging that Saturn of Natick refused to hire her because of her age and weight. (10) Ms. Gauthier, who was fifty-three years old and weighed 250 pounds, alleged that when she arrived for a scheduled interview at Saturn of Natick, she overheard her interviewer expressing his refusal to conduct the interview, which she attributed to her age and appearance. (11) Because Massachusetts does not recognize weight as a protected status, Gauthier brought her weight discrimination claim under handicap discrimination. (12) Recognizing Massachusetts's failure to protect against weight discrimination, the MCAD dismissed Gauthier's complaint because she failed to prove her weight constituted a handicap. (13)

This Note will begin by outlining the historic expansion of civil-rights protection in Massachusetts within the employment context. (14) It will then address the increased concern regarding weight discrimination and how existing Massachusetts law fails to provide an adequate avenue for bringing weight-discrimination claims. (15) Moreover, it will examine existing laws in other United States jurisdictions that have addressed similar issues and employ these jurisdictions as tools for comparison in addressing criticism of the pending Massachusetts legislation. (16) Finally, this Note will suggest ways to increase the legislation's probability of enactment and success. (17)

II. HISTORY

"This has been our view in Massachusetts ... that employment discrimination will not be ended until the door is opened to provide the remedy." (18)

A. History of Massachusetts Anti-Discrimination Law

Currently, Massachusetts's anti-discrimination statute prohibits employers from discriminating on the basis of race, color, religion, national origin, sex, age, sexual orientation, genetic information, or ancestry, absent a bona fide occupational qualification. (19) While such protections elicit little debate today, the history of civil-rights protection illustrates that throughout the statute's expansion, inclusion met opposition. (20) Nonetheless, throughout the country's history, Massachusetts has led in the advancement of anti-discrimination laws. (21)

On May 23, 1946, the Massachusetts legislature enacted An Act Providing For a Fair Employment Practice Law. …