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Under federal laws, employers are prohibited from discriminating on the basis of religion, race, natural origin, age (over 40), or disability. It's unclear whether gender identity and sexual orientation are also federally protected classes, although one or both may be protected under state laws. If an employee is fired, and they feel that it was based on discrimination, they may have a lawsuit for wrongful termination.
But, what about getting fired for gaining weight? Well, it depends on if the weight gain coincides with something that is protected.
Certain jobs may have requirements for how the employees look, and as long as the requirements aren't discriminatory, it's probably ok. For example, the recruiting brochure at Borgata casino hotel was looking for servers that were "part fashion model, part beverage server, part charming host and hostess...On a scale of 1 to 10, elevens all." While it sounds sleazy, this isn't discriminatory on its face. After all, someone's looks, including their weight, doesn't necessarily place them in a protected class.
A problem occurs, however, if the appearance standard do target a particular protected class. For example, if an employer fires a woman because she has started wearing a headscarf, a case could be made that the employer is discriminating based on religion.
With the servers working at Borgata, the women allege that their weight gain was related to things that are protected under federal law. More specifically, the servers argue that the weight gains were following pregnancies or related to medical conditions "most of which were only specific to women." And, more than 10 years after filing their initial lawsuit, a state appeals court has ruled that their gender-bias claims can be presented to a jury.
So, if you decide to have certain requirements for the appearance of your employees, you need to make sure that they couldn't be perceived as being discriminatory towards a certain protected class. And, it's not a good idea to fire them if they gain weight because of a condition that only affects a certain protected class (i.e., following a pregnancy).
Questions about your dress code or hiring qualifications? Ask a qualified employment attorney near you.
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