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HomeMy WebLinkAbout2010-09-08 PACKETFile S eptember x 2010 1 1 • - : A l l a .: �40 • ..- . s Next rneeiing: [ MVITI T- TAM 1,! • • ..- • City of Cottage Grove Members Present: Members Absent: Council Liaison: Staff Liaison: Others Present: Human Services /Rights Commission Meeting Minutes Wednesday, August 11, 2010 Laurie Steiger Rick Johnson Linda Lundstrom Tanweer (TJ) Janjua, Chair Francisco Gonzalez, Vice Chair, Doug Amos (excused), Mia Naseth- Phillips Jen Peterson (absent) Ken Smith 1. Call to Order At 7:10 p.m. the meeting was called to order by TJ who stated he needed to be out by 8:15. 2. Approval of Minutes from July 14, 2010. Laurie Steiger made a motion to approve the July 14, 2010 minutes. Rick Johnson seconded the motion. 3. New Commission Members Applications TJ welcomed the newest commission members Linda Lundstrom and Rick Johnson and asked them to talk about themselves to the other committee members. Linda said she was Social worker for the schools and Rick said he worked for the State of MN workers comp division. Other members informed the two about their jobs and expertise in the area of Human Rights. There was a brief discussion about the youth seat and it was decided that TJ and Francisco would interview Brenna Masgai and asked Ken to set it up. S. Family Homeless Commission This discussion was tabled until September 8 because Council Member Jen Peterson was unable to attend the HS /HR meeting because she had a conflict with the City Council meeting. 6. human Rights Day Conference /Bremer Mini Grants TJ asked Laurie to investigate grants for the human rights day conference in December. The group was informed that Mia was also looking into other grants. Laurie said she would send a draft of the grant application to the Commission for approval by August 16, 2010. 7. Accessibility Task Force Ken made a brief presentation about his efforts to advertise the Accessibility Survey. He stated that some were given away at the Strawberry Fest, City Hall, and on the City's web page. Laurie asked for some surveys to hand out. 8. Diversity Highlight of the Month There was a brief discussion about the rash of shooting by police in Cottage Grove and TJ mentioned that today was the first day of Ramadan, a Muslim holiday that involves fasting. 9. City Update Because of Council Member Jen Peterson's absence Ken Smith gave the update. He mentioned that Sally's was moving into the old Subway near Target. He mentioned the current construction stage occurring on Hwy 61 and the 3M meeting at the Junior High. 10. Miscellaneous Laurie offered her thanks to Ken for all he does for the Commission and the other members agreed. He said thank you. 11. Adjournment A motion was made at 8:15 p.m. by Laurie to adjourn the meeting and seconded by Rick, all present were in favor. The next meeting is September 8, 2010 at 7:00 p.m. Respectfully submitted by; Kenneth L. Smith ,Community Services and Communications Coordinator City of R �� G rove, , Minneso a .. Advisory COMMIsslon ft ce ffice t. S MN 55016 , 458 -2897 119i1t +�c1 � Citizen fly h p > &� sv ✓6-4 des 2 Phone�� Please rank in order the commissions on which you would like to serve (leave blank any on which do not wish to serve): Economic Development Authority u Environmental Commission Historic Preservation Planning a Human Services /Human Rights (� Public Safety, Health & Welfare j Parks, Recreation & Natural Resources ( Public Works j Cable Telecommunications Other: Do you have any special qualifications that you feel would help you be particularly effective on a commission (i.e. work experience, volunt er experience, education, hobbies, etc.)? cz passiz�n hC ed��t -; tits a�OOt� acl� r +y Z e. List two three go that you would like to see accoMp Isi hed (' f n your term on a commission, vU i�llp G"I ieS) V27o� H oov w ; did you become interested in serving on a commission? c ex` l C(C� A:A7 ( u,��q sue}- - lv� -A-��o of �C�(X-r P- 3 cct�L�l The City strives to have a variety of people serving on its advisory commissions. T e following 6 information is optional, but would be helpful to us in achieving our goal of balance. Sex Age �_ -- Racial /Ethnic Group 14e Years as Resident - -- -- - --- . -- --- -- - --J- THIS APPLICATION WILL BE KEPT ON FILE FOR ONE YEAR AFTER DATE OF SUBMITTAL, PLEASE CONTACT CITY CLERK CARON S T RANSKY WITH ANY QUESTIONS AT (651) 45$_2814. Weight bias: -t ne nex civil rights issue? As a war against obesity heats up, some Americans are fighting hack, and demanding equal rights for people of all shapes and sizes F ....... . zF€ 190 E. Sti Street, Sure 700 St. P'aul,MN 55!01 1- 800 -657 -3704 1651 -296 -5663 TTY: 651- 296 -1283 In This Issue News from MDHR p 2 Case of the Month: Marital Status p 3 Human Rights Day 2010 Update p 5 Weight Bias: The Next Civil Rights issue? p 7 Laws in Other jurisdictions p 15 By Rights: Answers to Your Human Rights Questions p 22 QUARTERLY PUBLICATION OF THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS • SEPTEMBER 2010 Rights p e Office Cloud The Minnesota Department of Human Rights is scheduled to open a regional human rights office in the St. Cloud area on September n. The new St. Cloud Regional Human Rights Office (SCRHRO) will provide outreach, education and intake functions for those in the Saint Cloud and Saint Joseph areas of Minnesota on a year round basis. "Discriminatory acts seldom follow strict political or geographic boundaries," noted James Kirkpatrick, Commissioner of the Minnesota Department of Human. Rights. "For this reason, we have established a regional human rights office in the St. Cloud area to increase enforcement of anti- discrimination laws and promote the goal of eliminating discrimination in the state of Minnesota." The office is being established by the Department of Human Rights in partnership with St. Cloud Regional Human Rights Joint Powers Board (fPB). It is the Department of Human Rights only regional office, supplementing its main St. Paul location. "The Department of human Rights is committed to addressing the growing needs of an increasingly diverse population in the St. Cloud area," Kirkpatrick- said. "We appreciate the St. Cloud communitv's determination to end discrimination through the bold initiative of the St. ('loud Regional Human Rights joint Powers Board QPB), which approached us about opening a St. Cloud office and provided the needed additional funding." The office will be located in St. Cloud City Hall at 400 2nd Street South, and staffed by a full-time Enforcement Officer and a part - time administrative assistant. Its Enforcement Officer will be J. Richard Cousin, who currently works for the Department of Employment & Economic Development's Workforce Center in St. Cloud and has also been a federal police officer for the Department of Veterans Affairs in St. Cloud. Cousin begins work for the Department of Human Rights on Sept. r, zero. "We welcome Rich and know he will be a great asset to our department, and specifically to the St. Cloud area," said Kirkpatrick. An administrative assistant will be hired for the St. Cloud office soon. For more information, please contact Jeff Holman, Communications Director, Minnesota Department of Human Rights, 651-296-2173, jeffholmanCa?state.mn.us. I11I' IMI11 .1 Governor Tim Pawlenty appointed James Kirkpatrick as Commissioner of the Minnesota Department of Human Rights, effective June t, zero. R,rkpatrick held the position of Deputy Commissioner at the Commissioner James Kirkpatrick department since 2003. He has previous experience in the private sector as a finance and accounting manager for LSG Sky Chefs and revenue controller with National Car Rental Systems. Kirkpatrick also served in the United States Army for zo years, retiring with the rank of major. "James is experienced in working in support of fairness and justice," Governor Pawlenty said. "He also has the skills and background to manage the department's budget and ensure that cases that come before the I Inman Rights Depart,ent are resolved in a timely manner." Kirkpatrick, 57, has a Bachelors of Arts & Science degree from Virginia "Tech in Blacksburg, Virginia and a Master of Business Administration degree from Golden Care t ?niversity in San Francisco, California. He and his wife, Wanda, live in Lakeville with their sson. They also have two adult daughters. PAGE The Department of Human Rightspublishes information about selected cases and settlement agreements, including its `Case of the Month, " aspart of its mandate under the Human RightsAct to educate to eliminate " discrimination. Settlement agreements do not constitute an admission of any liability, an admission of a violation of the Minnesota Human RightsAct or any other lac, or an admission of wrongdoing by the respondents. He was suspended— not because of anything he did — but because a supervisor objected to the conduct of his wife, the chargingparty alleged The following information is a summary of the department'f_findings and contains exempts from other public documents relevant to this case. Factual Basis of the Allegations— What the Charging Party Alleged Michael Wolf worked in the kitchen at Cragun's Resort, and while on the job, he fell and injured his back. His doctor provided a note for his employer, restricting Wolf from lifting anything heavier than ten pounds and from driving. A few days later, the doctor decided that the driving restriction was not necessary, and provided Wolf with another note to that effect. When Wolf drove to work to get his paycheck the next day, he told a supervisor that he was now permitted to drive. But he had brought the wrong note, Wolf discovered, so he promised to bring in the new note the next day. That would be all right, the supervisor said. Wolf picked up his check and returned to his car, where his wife had been waiting for him. As the couple sat in the vehicle, the supervisor approached and began taking pictures of Mr. Wolf, telling him he vas not supposed ro be driving. The supervisor's approach and picture- taking startled Wolf's wife, who became upset. A heated argument ensued between the supervisor and h'irs. Wolf, and Mr. Charging Party Michael Wolf Brainerd, MN Respondent Cragun's Resort 11000 Cragun's Dr. Brainerd, MN 56401 Case '# 53093 Closed 6-29 -10 Wolf eventually drove off When Mr. Wolf arrived back at work later that day to work an evening shift, his supervisor told him he was suspended "indefinitely" The supervisor handed him a written note, which said in part that he was suspended because his wife had just telephoned several Cragun's employees, threatening to sue Cragun's over the incident earlier that day. The supervisor then had a security ward escort Mr. Wolf out of the building. Within the week, after a conversation with Cragun's workers' compensation carrier, the employer telephoned Mr. Wolf and told him he could return to work in housekeeping on light duty Wolf went back to work in housekeeping. About six months later, a supervisor told hint the PAGP3 company was downsizing due to lack of business, and Wolf was terminated. However, the month after he had been let go, he learned that his job had been posted at his work site, and Cragun's had also placed a newspaper ad seeking applicants for full and part -time positions. Wolf also learned that other employees who had been laid off due to downsizing had been called back to work, but he had not been. He telephoned the supervisor who had let him go, left a message, and asked her to call. He asked a friend who still worked at Cragtm's to let his supervisor know that he was still looking for a job. But he never heard back from his former who has a disability, or a particular status wirh respect to another protected characteristic.) Summary of the Commissioner's Memorandum —What the Department's Investigation Found In answering the charge, the respondent argued that Wolf was laid off, along with other employees, due to lack of business. Ile was not rehired due to what a originally suspended Wolf In documentation supplied by both the charging party and the respondent, the respondent admitted that it had suspended Wolf in part due to a disturbance caused by lus wife. "The Department, therefore, reasonably concludes that the respondent violated the marital status protections of the Human Rights Act when its management suspended the charging party because of his wife's actions," the department found. In documentation housekeeping Terms of Settlement Wort in part due to a disturbance caused by employer, and soon learned that several his wife. others had been hired or rehired to work in the housekeeping department. Wolf filed a charge with the Minnesota Department of Human Rights, alleging that Cragun's Resort had discriminated against him on the basis of marital status — that he had been subjected to differential treatment because of the behavior of his wife. He also alleged that his marital status and that his association with his wife, who has a disability, were the reasons he was Iater to rn inated and not rehired. (Mader the Hunan Rights Act, it is illegal to discrimina against an ermplovct� because that individual chooses to associate with a person manager regarded as his low performance level, compared to other candidates. The individuals who were called back to work had skills and experience in areas that Wolf did not, such as ironing, Cragun's maintained.. The respondent did not provide evidence to dispute Wolf's claim that he had originally been suspended because of the actions of his spouse. The department did not find probable cause to believe that Cragun's decision to terminate Wolf and not rehire hum, was due to discrimination. Wolf's allegation that Cragun's had engaged in reprisal by terminating him Because of his association with his wife (who has a dtaahility) was not supported by the do partmcnCs imestitation. However, the department did fired ps obable cause to behove. that Cra_ violated the Act, whcn it In a negotiated settlement, Cragun's Resort agreed: ° 'to pay Sg,000 to Michael Wolf; ° To provide Wolf with a positive letter of recommendation regarding his skills and abilities as an employee; • To provide one hour of training on the fair employment provisions of the Minnesota Human Rights Act, including, specifically, provisions related to accommodations for individuals with mental health disabilities and marital status, for all Minnesota managers, supervisors, and human resources personnel; and to review and revise existing policies as needed to ensure compliance with the Act. Settlement agreements do not constittere an admission o f any liability, an admission o{a violation of the Minnesota Harman kigbtsAct m' arty other Lz {. or an admission of , rongdohrg by the respondents. P;%' ;E 4 Human Rights Day Conference At a Glance When: Friday, December 3, 2010 Where: Crowne.Plaza Hotel, St. Paul Keynote Speaker: Coach Herman Boone. Mr. Boone will speak about "the Titans: lessons in diversity and inclusion." Conference Costt Individual rate: $200 per person. Group rate $175 per person (for 8 or more people registered at the same time; includes table with organization name). How to Register: `Conference registration form' is available on the department's website as well as printable registration form at: http: / /www.humanrights.state. mn.us/education/hrday_regist ration.html Event Sponsors: Special thanks to our Event Sponsors: Mayo Clinic, and Thomson Reuters 1 � T MAYO CLINIC I h D • • Upi The Minnesota Department of Human Rights 27th Annual Human Rights Day conference will feature two dozen workshops on some of today's most important human rights issues. The conference will be held Friday, December g, aozo, at the Crown Plaza Hotel in St. Paul. Workshop sessions and topics are scheduled to include: Session One 4:20 am - 10:20 am • zoro, Legal Update • Brief Overview of Sexual Harassment Laws Worldwide • How Community Can Help to Close the Achievement Gap • Veterans Courts: ,Purpose and Desired Outcome TransitioningOffenders: Starting Over Again.! Session Two 10:30 am - 11:30 am • RelibnousAccommodation in the Workplace: Islam Housing Discrimination and the Fair HousingAct Mediating Discrimination Claims with EEOC MDIIR, St Paul and Minneapolis Civil Rights • Creating a GFrlcomingandlnclusive School Environment for GLTT Students, Staff and Families • Tolerable Cruelty? Obesity in the Workplace Session Three 1:30 pm - 2:30 pm • Putting Opportunity Back in Housing Opportunity • Immigration Relief for Children and Other Vulnerable Individuals • Keynote Q &A with Coach Herman Boone • ALegal Overview ofthe Sbephard/Byrdllate Crime Act • Union Rights and Discriminatiow National Labor Relations Act Session Four 2:40 pm - 3:40 pm • Latest Developments in Sexual FlarassmentJurisprudence • Discrimination and Harassment in the Era of Social Media • Landlord and Employer Legal Responsibilities to Victims of Domestic Violence • From Burma to Minnesota: The Karen Community Today • What do the ADA Amendments Mean for the Workplace? Visit our web site for workshop descriptions: http://www.huii ducation/hrdayhtml The conference will feature a keynote address by Coach Herman Boone, whose inspirational story was captured in a film starring Denzel Washingt Boone will speak at the Human Rights Day Conference on "The Titans — lessons in diversity and inclusion." The conference is Coach Herman Boone sponsored by the Minnesota Department of Human Rights in partnership with the League of Minnesota Human Rights Commissions. Conference workshops, times and other information are subject to change. Check the ilepa zments web site for the latest conference updates. PAGES artwork played b 5itel 4 x All K rz Minnesota students are encouraged to enter Contest Challenge: Create an original poster that reflects your interpretation of the human rights quote below: "Human rights education is a long -term and lifelongprocess by which allpeople at all levels of development and in all strata ofsoriety learn respect for the dignity of others and the means and methods of ensuring that respect in all societies.." (UN Commission on Human Rights, Resolution 2004 /70 Contest Deadline Entries must be postmarked by Thursday October 14, 20to. Refer to rules and guidelines for instructions on how to submit entries, available on MDHRs web site. Awards Finalists will be honored at the Human Rights Day Conference on Friday, December 3, a010 at the Crowne Plaza Saint Paul Riverfront Hotel, and their artwork will be displayed on Human Rights Collaborative web sites. Sponsored by the Hunan Rights CollaborativeThe Minnesota Department of Human Rights, Advocating Change Together, the University of Minnesota Human Rights Center, The Advocates for Human Rights, and the Lea of Minnesota Human Rights Commissions. .. 1 3,_�. a„ k.CeM A err: Y , v 3 C Upcoming Statewide MDHR Trainings and Showcases in 2010 Date Event. Location September 23 Training Showcase Chanhassen December 3' - . Community Forum Saint Paul Human Rights Day Community Forums each cover a broad area oaf the Minnesota Human Right.; Act, The Minnesota Department of Human Rights (3dDHR) partners with local human rights commissions to select local experts to helji present chosen topics andfoster community dialogue. Forums are open to the public anel there is no charge to attain. except for MDy'fR' annual December Human Rights i Day Conference and Forum. T rziniing ,Showcases are half day seminars in u hich MDHR trains employers an a specific topic related to one of the basses of the rtfinnesota Human ,Rights , Showcases are open to the public; there is a small charge to attend. PAG E 6 THE RIGHTS STUFF FOCUS 1 civil s issue? As a war against obesity heats up, some Americans are fighting back, and demanding equal rights for people of all shapes and sizes rserimination against people IL who are overweight is as common as racial discrimination, according to a study at Yale University published in 2008 in the International Journal of Obesity. For those who would challenge such discrimination, the study confirmed what many say has long been abundantly clear: bias against people who are considered fat is pervasive — in employment, education, public accommodations, and virtually all aspects of our society. Those who are overweight earn less than non - overweight people in comparable positions, are less likely to be hired in the first place or considered for a promotion, and are often viewed as lazy or Lacking in self - discipline by employers and coworkers. Over',' .lo -year career, a worker who is overweight is likely to earn S;ioo,000 less than a person who is thinner according to another stud}; and women are stigmatized and financially penalized more than men for extra pounds. In the Yale study, women were twice as likely as men to report that they had been discriminated against in the workplaces because of their size. In education, stereorvpes and prejudice based on weight are also prevalent, with teachers and other Continued on next page rr i PAGE When Weight Discrimination is illegal Weight is not a protected characteristic in Minnesota,' under the state Human Rights or any other Minnesota or federal lays. That means it is generally not illegal for an employer to ,refuse to hire, fire, or treat an employee or job applicant adversely '.because the employer believes they are too fat (or too skinny, or doesn't like something else about their physical ` appearance.) But it can be illegal to discriminate against a person who is overweight in some circumstances. Examples that range from the probable to the possible 'include: If an employer engages in gender discrimination by having different standards for women than for men when it comes to weight and fitness; Continued from previous page students making life a lot tougher for large kids, beginning in preschool. 'leachers have lower expectations for overweight students, according to several studies, and other kids see them as ugly, lazy, and stupid — three out of five of the heaviest kids report such teasing. It becomes harder for kids who are victimized in this way to succeed academically, and when they do, place at other major airlines. While most would agree that America has at least made progress in ending discrimination based on race, gender and other characteristics protected under federal and state laws, the discrimination people who are overweight experience every day has in fact become worse over the past few years, some evidence suggests. The Yale study found that in 1995 -96, seven percent of U.S. adults said they had If weight rises to the level of disability; • If the overweight person is perceived as disabled by the employer; If a weight requirement has a disparate impact against another' protected class, such as age, If obesity causes a disability, Of obesity results from an underlying disability, such as an eating disorder, or a compulsive. behavior (though same argue that this theory may be more speculative)`. weight bias experienced weight remains a harrier. discrimination. Ten Apparently, There is no federal law years later in 2oo6, college that broadly prohibits that percentage admissions had increased to 12 officers don't like employers from percent. overweight kids discriminating based on The increase in either, or don't discrimination may consider them weight, and only the be surprising, given . likely to succeed state of Michigan and that Americans are in academia. fatter than ever: in Obese students six U.S. cities make it fact, more than 6o are much less percent of us are likely to be illegal to fire someone, considered accepted for or not hire them, overweight, and admission to more than one - college, despite because they are fat• quarter of us (26.9 academic percent nationally) performance are considered equivalent to their thinner peers. In public accommodations, finding a place where one can sit — in a restaurant, movie theater, or any mode of public transportation -- is a frequent challenge for the larger individual, particularly with airline seating which those who aren't overweight may find cramped. Though activists complained loudly whet T rated Airlines announced in 2oo9 that it would require obese passengers to pay for vivo seats if they couldn't fit in One seat, and an open scat wasn't available, the policy was already in obese. As a results of what has been called an obesity epidemic, some health experts have declared a virtual war on fat, and responded to what they see as a health crisis by encouraging everyone to lose weight, with the help of employer- sponsored wellness programs and an extensive media campaign. But while such efforts may be wctl- intentioned, they may atso lead to the further stigmatization of people who are overweight, and to even more discrimination Continued on next page PA F, THE R IGHTS some fear. Wait a minute, they would say. Yes, it can be unhealthy to be fat. But thin people can be unhealthy, too, and people can be both fat and healthy Public relations campaigns that focus on fat are wrong- headed, some argue, and likely to be counterproductive, since 90 percent of dieters ultimately regain the weight they lost. Welcome to the Fat Acceptance Movement, which champions the rights of people of all sizes and sees weight discrimination as a civil rights issue. As some in the gay community have reclaimed the word, "queer," and transformed what had been a discriminatory slur, organizations that would fight against weight bias have reclaimed and embraced the word, "fat." It is not necessarily an insult — not to the California -based National Association for the Advancement of Pat Acceptance CNAAFA) which has fought to end size discrimination since 1969. Another organization, the New York -based Council on Weight and Size Discrimination, also fights to end what it calls "sizism" and "weight bigotry" denounces the medics portrayal of "fat people," and promotes equal treatment for all people, no n,atrer what their Et c rght. It argues that bias against weigkit is no diffe than prJudice based on color, gender, religion, disability, or sexual orientation, and in language reminiscent of the civil rights movement, speaks of its goal of "weight diversity." But there is at Ieast one difference between weight bias and other forms of discrimination, one that both organizations seek to end: weight discrimination is generally not illegal. There is no federal law that broadly prohibits employers from discriminating based on weight, and only the state of Michigan and six U.S. cities make it illegal to fire someone, or not hire them, because they are fat. The cities that include weight discrimination (or in some cases, a broader category of "physical appearance ") as a protected class include Santa Cruz, CA, San Francisco, CA; Urbana, II; Madison, WI; Binghamton, NY; and 'Washington, D.C. (see story, Page �5). Another difference is that while derogatory comments about race may be considered unacceptable and a racial slur may jeopardize or end a career, hurtful and demeaning comments about weight are not subject to the same censure. Many who would object to offensive stereotypes and take umbrage over insulting comments about race, gender, or disability, feel it's ( to make fun of fat people and characterize them in unflattering terms. think that's OK. It's sort of a Continued on next page Where Weight Discrimination is illegal States (I) I tea . M Michigan The Elliot Larsen Civil Rights Act p rohibits discrimination in 'r ,� P N ...� ` employment based on weight and on height, in addition to race, color, . religion, national origin, age', sex, and marital status. Cities and Municipalities (6) Santa Cruz, California A city ordinance prohibits "differential treatment as a result of that person's.... height, weight, or physical characteristic," in addition to other protected characteristics. San Francisco, California A city ordinance prohibits discrimination in employment, housing and public accommodations based on person's weight or height, . in addition to other protected characteristics. Urbana, Illinois Acity anti- discrimination ordinance includes "height, weight, or physical characteristics" as protected categories. Washington, DC` Its human rights law includes "personal appearance," which includes weight and other physical attributes, as a protected category in employment. Binghamton, New York A city anti- discrimination ordinance includes "height, weight, or physical characteristics" as protected categories. Madison, Wisconsin Acity anti- discrimination ordinance includes "height, weight, or physical characterist as protected categories - P'AGf q fair -game mentality," says Yvonne Shorts Lind, Founder and President of Twin Cities EEO Consulting, P. C., who advises public and private employers on a variety of legal issues impacting their work force. Lind will be conducting a workshop at the Minnesota Department of Human Rights annual Human Rights Day conference on Friday, Dec. 3. The workshop is titled, "Tolerable Cruelty? Obesity in the Workplace." It may be considered tolerable because many view obesity not as a personal characteristic, but as a personal defect — a character flaw for which they Why, Lind asked. `And he said 'well, if her heart condition is based on her diet, then it's really her own fault. And I don't think we should have to do anything." Why employers (and others) discriminate The opinion that an overweight person is somehow defective — and that their weight provides ample proof of other negative qualities such as emotional instability, laziness and lack of self discipline — may lead some employers and others to believe that prejudice against hiring those who are overweight is justified. In any case, managers and supervisor do not seem overly reluctant to admit their anti -fat biases. When asked in a 2010 poll by Business and Legal Reports (BLR) if someone's weight had ever influenced a decision to hire him or her, 26 percent said yes, and another 28 percent admitted that weight might have influenced their hiring decision may deserve scorn or ridicule, since Many view obesity net as a being overweight is really "their personal characteristic, but own fault," and as a personal defect — a something they should be able to character flaw for Which change. That they may deserve scorn or misperception came to Lind's ridicule, since being attention a couple overweight is really their of years ago, when she was guest own fault," and something lecturer at St. Thomas they should be able to ' niversity and change teaching a class on the Americans with Disabilities Act (ADA). She presented a scenario involving an employee with a heart condition, and asked what steps an employer might need to take in deterniming whether to pfovide a reasonable acroJnnnodation. One of the first students to respond said he would need to know if the heart condition was eciletic, or the result of diet. unconsciously In a survey of human resource professionals in 2oo- published in Personnel'Ioday Magazine, 93 percent said they would prefer to lire a thin person instead of a fat one. In fact. there is little evidence to support most Of these stereotypes, and recent evidence challenges these commonly held beliefs. A Michigan State University study in 2ooS by associate professor Mark Roehling found that overweight and obese adults are not significantly less conscientious or less emotionally stable than their thinner counterparts. Roehling studied the relationship between body weight and personality attributes for about 3,5oo adults, and concluded that commonly held stereotypes about weight and character traits were largely fiction. But whether or not employers believe overweight people are lazy or less stable, they may worry that customers may hold negative attitudes about fat employees and be inclined to take their business elsewhere. In apending case in San Francisco where weight discrimination in employment is Illegal, a server was fired at a health - oriented food establishment after a customer criticized the business online and wondered why the owner had "a fat girl working at a health food store." In a precedent - setting case in the same city shortly after the law was passed, an aerobics instructor was rejected by the Jazzercise franchise, allegedly because her body shape did not project the right, fit -and -trim image (tree story; page rj). When weight discrimination is — or can be — illegal Although weight discrimination isn't against the law, disability discrimination violates the ADA and state laws like the Minnesota Hunan Rights Act. When obe.sity rises to the level of a disabiliti. the employee is protected (tore discrimination and may be entitled Continued on next page s Haw Heavy Ar Nationwide (in the District of Columbia adults are considers obese (36.2 percent are percent are obese). Compared to abou t America has put on 1 995, fewer than 16 per 'ac nta ac ehn IS years ago, a lot of weight. In cent of Americans were _ ,._ __. �_. _ .._..1 2009), and almost' half of all Americans (47.9 percent) were considered neither overweight nor obese. In Minnesota, 63.3 ;percent of adults are overweight or obese (37.9 percent are overweight, 25.4 percent are obese). In other words, Minnesota is about average compared to the rest of the nation in :terms of the number of y people who are considered overweight or obese: Like other Americans, Minnesotans have gotten significantly heavier in recent years. In 1995, about half of all Minnesota adults were considered overweight or obese and only 15.3 percent were considered obese, vs the current 25.4 percent obesity rate. The state with the greatest percentage of people who are either overweight or obese is Mississippi (34.9 percent are overweight; 35.4 percent are obese).The state with the least percentage of people who are overweight or obese is Colorado (36.7 percent are overweight; 19 percent are obese) although the District of Columbia has even fewer people considered obese or overweight. Note: The Centers for Disease Control and Preventior..(CDC) defines overweight as having a BMI or Body Mass Index of 25.0 to 29.9; a' BMI of 30.0 or greater is considered obese. E Source: Centers for Disease. Controi and Prevention; 20109 statistics Continued from previous page to reasonable accommodation under state and federal disability laws. In 2oo6, a male systems analyst employed at a company in Eden Prairie filed a charge with the Minnesota Department of Human Rights, alleging that the company fired him despite good performance, because he was morbidly obese. He was allegedly terminated shortly after a customer complained and the company's president told his manager, "Get rid of that fat guy. We don't need anyone that fat working here." The fired employee argued that his morbid obesity constituted a disability and that the company had violated the Duman Rights Act by engaging in disability discrimination. The Department of Human Rights found probable cause to believe the Act had been violated., and the employee and the company evennially agreed to a private settlement. 'I lie courts and the I3 1 OC have tong considered "morbid obesity" to be covered under the ADA, which had defined "disability" as a physical or mental impairment that substantially limits one or more major life activities. (A person is considered morbidly obese when he or she is go to too percent, or too pounds, above his or her ideal body weight, or has more than 39 % body fat.) But obesity had usually not met the definition, except in unusual circumstances, as when the obesity resulted from another physiological impairment. But in 2oo8 the ADA was amended, in part because of Supreme Court decisions that had interpreted the dei nition of disability narrowly The new amendments appear to make it likelier that obesity; not just morbid obesity, will be protected under the ADA. "Clearl with the new amendments, the whole intent was to make it broader, and many more individuals are now considered disabled under the ADA because it's so much broader," says Lind. Dien there is the issue of who is "petccived is disabled." Even before the new rules, an individual could be < onsidei r d disabled under nA(IE tr A y the ADA if his employer perceived that he or she had a disability that substantially limited one or more major life activities. These "perceived as disabled" cases may also be easier to prove under new amendments. "The statute has certainly broadened the scope of what is it perceived disability, and it's also actually broadened what is considered an actual disability," says Laurie Vasichek, Senior Trial Attorney for the Equal Employment Opportunity Commission (EEOQ. "I think generally, it is simply going to be easier to prove disability under the ADA as amended." If an employer doesn't want to hire someone who is overweight, because the employer believes that person will have a hard time going up and down stairs, or standing for long periods of time, or is likely to be absent from work more than other employees, that does mean the employer perceives the overweight person as disabled, and that individual may have a claim under the new ADA rules? "Potentially," says Vasichek. "It's going to depend on what the employer's perception is." If an employer thinks people who are fat are lazy or lacking self- discipline, than stereotype would probably not give rise to a disability claim. "That's not perceiving someone as having a disability That's more just carrying biases that are not disability related," says Vasichek. Rut a claim could result "if the c- nployer perceives a person as having in impairment and takes "Crion hased upon that perceived impairinent," she says. "So the question is going to be. does the employer per Tice the weight as an impairment? Let's say the employer does perceive the person as having an impairment, or perceives that because the person is overweight, they are naturally going to be subject to type II diabetes or something of that nature. I think they could make an ADA claim in those sort of person who is overweight is necessarily disabled or less healthy than a thin person is a stereotype that leads to discrimination. Yet, unless and until weight discrimination per se becomes illegal in more jurisdictions, disability and "perceived as disabled" claims will circumstances." continue to be a major An employee N think in the disability tool in the fight for who encounters size equality. weight world, it's hard to know For those in the discrimination at whether you're being disabil community ry work may also be weight is increasingly able to make a discriminated against an issue. "Weight claim if the weight because of the disability discrimination is very results from an prevalent in the underlying — if the disability is disability community" condition that apparent — or 60Catt9e says Margot Imdieke would be Cross, Accessibility considered a of the weight." disability. The condition could be physical or mental, suggests Kathryn Engdahl, an attorney at Metcalf, Iiaspari, Engdahl & Lazarus, P.A. in Minneapolis, whose practice includes representing plaintiffs in age, gender, disabilit and other discrimination cases. "If you could show that a person is a compulsive eater, along the lines of OCD, and you had some sort of diagnosis, could that aside from the weight itself be considered a disability ?" site asks. The answer isn't clear, but one thing is: the new ADA rules will give rise to an increasing number of claims, and such issues will inevitably come before the courts in the riest few vears. The coruzection bct een Weight and disability is one that advocates for "f acceptance" might approach with sonic caution, since beliefs about that relationship can be both a boon and a banc. The idea that a Specialist for the Minnesota Council on Disability. "But I think in the disability world, it's hard to know whether you're being discriminated against because Of the disability— if the disability is apparent — or because of the weight." She finds that the issue is coming up more often, and predicts that laws and building codes will need to change to better accommodate people who are overweight, "We are having to take a hard Iook at things Iike the building code and accessibility requirements, to see what the future- might require, what changes might be around the corner," she says. Weight and gender It is a illegal for an employer to have different standards for women than for men with respect rc sire or fitness, and evidence Continued on next page I AGF 12 y Continued from previous page be inclined to exclude some workers be careful not to misuse information suggests that many employers do, just as society appears to judge female appearance more critically. "Women are supposed to be fit and trim, you know" observes Engdahl. "There is a real double standard when it comes to weight and gender, and there are clearly places where that standard is enforced." In the zooS Yale University Study, women were twice as likely as men to say they had experienced weight discrimination. Among those who were obese, 45 percent of women said they had experienced discrimination because of their weight, as compared to 28 percent of is a real double standard obese men. If overweight men are when it Coates to weight tolerated but and gender, and there comparably overweight women are clearly places where are not, a. claim or that standard is gender discrimination could enforced." be made under the Minnesota Human because of their weight, believing such policies are not illegal, should consider when they might disproportionately impact another protected class. "When they are saying they are going to exclude these people because of their weight, are they really excluding the older worker? Or are they really excluding individuals with disabilities? Even if your policy is neutral, you have to consider whether it has a disparate impact." Employers should also be careful in how they implement wellness programs designed to encourage employees to get fit, to ensure that such programs are truly voluntary and do not penalize those who choose to not participate or are unable to successfully achieve a fitness goal, Vasichek suggests. If a program's incentive is so great Rights Act or Title VII of the Civil Rights Act of 1964. It is also possible that firing, refusing to hire or other practices penalizing employees because of their weight could result in a claim of discrimination based on another protected characteristic, such as age. "Back in the day when the flight atrcndants had weight restrictions and they had to mainram, let's saTz a 1255 pound weight, thr argument was that such a requirement had a disparate impact based on age, because as wcmr n age and as men age, they became heavier, says Vsichek. She suggests that employers who might that an employee is essentially penalized for not participating, such a program could raise a number of thorny legal issues. If data is being collected on an individual's fitness level, who has access to the data, and how is it going to be used? If there is pressure to participate and health or wellness data is collected that is unrelated to the requirements of a job, could the collection of such data constitute a mandatory — and perhaps illegal - -- medical cxaui? "Clearly employers have had a big push, with the rising cost of healthcare, to get everyone healthy," says Lind. "But it should be an incentive program versus a penaltu And, people would have to gained." What's next It may be ironic that what some argue is among the most prevalent forms of discrimination — and potentially affects the more than 6o percent of us who are overweight — is legal almost everywhere, unless another discrimination claim such as disability or gender can be raised. Those who are working to enact laws against weight bias fear that our increased focus on America's ever - expanding waistlines may sabotage their fight for size equality, and subject them to further discrimination. An obesity epidemic may demand attention and resources, but is no excuse for intolerance and injustice, advocates say But as the war on obesity goes on, and Americans keep getting fatter and trying desperately to do something about it, it appears unlikely weight or size will become a protected characteristic in many cities or states, anv time soon. The fight will continue to be, and the victories will come, on the edges of the issue, as advocates for size equality challenge discrimination based on disability gender, or other characteristics that are protected. Weight discrimination will continued to be what the Yale study author Rebecca Pull has described as a "socially acceptable injustice.," penalizing women more than men, but making life harder and less fair for virtually everyone who is overweight. Perhaps surpzismgl another Yale study published in 2010 found that a majority of Americans would PAC.:ai rg ftNX J support legislation that would prohibit weight discrimination in the U.S. Most people are opposed to discriminatory practices such as refusing to hire, withholding promotions, paying lower wages, or unjustly terminating obese employees, this national survey found. Perhaps not surprisingly, women were more likely than men to say weight discrimination ought to be illegal. While Less than half (47 percent) of men said they would support adding "body weight" as a protected category to existing Civil Rights law, 61 percent of women thought it was a good idea. In answering a related question, 65 percent of men said they would support laws to protect obese employees in the workplace, while Si percent of women wanted to see such protection. If the data is indicative, most Americans want to lose weight, prefer thinness to excess pounds in themselves and others. but also want a society that treats people who are obese or overweight more fairly in the workplace and elsewhere.. Those who are most likely to experience weight bias — who are plus - sized in a society where gender expectations say you're worth mote, and will earn more, if you are size two -- just want it more. FOR The Stic Rebecca! `Obesity.(i http: / /yal� I and Chelsea A. Heuer dor.10.1038 /oby.2 008.6 Weight Bias: The Need for Public Policy Rudd Report, Rudd Center for Food Policy & Obi :Yale University, 2008 http://www.yaleruddcenter.org/resources/upload/docs/w WeightBiasPolicyRudd Repo rt pdf Understanding Size Bias A conversation with Rebecca Puhl, Ph.D., who serves as the c, Rudd Center for Food Policy and Obesity's Community and W http://www.tolerance.orglactivity/undet nsity iat/bias/ )ordnator of the Yale's eight Stigma: Initiatives. Weight Discrimination: A Socially Acceptable Injustice Rebecca Puhl,`PhD http: / /www,obesityaction.org /magazine /oacnews 12/ Obesity %20 D i s c ri m i n ati o n. p ci f Prevalence and Trends in Obesity Among US Adults, 2999 -2008 Katherine M. Regal, PhD; Margaret D. Carroll, MSPH; Cynthia L. Ogden, PhD; Lester R. Curtin, PhD JAMA. 2010;303(3):235-241. htLp://iama-ama-assn.org/cgi/content/full/303/3/235 Perceptions of weight discrimination: prevalence and comparison to race and gender discrimination in America RM Puh[,T Andreyeva and KD Brownell Rudd Center for Food. Policy and Obesity, Yale University, New Haven, CT USA http://www.nichq.org/pdf/09*/`2OPuh]4,pdf Results of the NAAFA Survey on Employment Discrimination Esther Rothblum, Pamela Brand, Carol Miller and Helen Oetjen University ofyermont http: // www - rohan .sdsu.edu /- rothblum /doc_pdf /weight/ ' Results of NAAFA Survey.pdf Changes in Perceived Weight Discrimination Among Americans, < 1995-1996 Through 2004 -2006 Tatiano Andreyeva, Rebecca M. Put and Kelly D. Brownell http!// www .yalerudcicentei.orglh - e.sourccs /upload /does /news /Obesity -2008 pdf I'A( ;B 4 W11eight discrimination is illegal in one state, Michigan, and six U.S. cities. But has making weight or size a protected class made any difference? n Urbana, Illinois, for more than is years it has been illegal for an employer to discriminate against people who are overweight. That's the combined tenure of Todd Rent, the Urbana human relations officer who enforces its anti - discrimination laws, and the person who held the job before him. The same city ordinance that prohibits weight discrimination also protects other aspects of physical appearance. If you think that in is years, Urbana's enforcement agencv would have seen a few charges of weight discrimination, you'd be wrong. In fact, there have been no such charges. "Lip until this year, we have not any personal appearance charges, at least that I know of," says Rent. He has been on the job for three years, but checked with the individual who was the city's human relations officer for 15 years before him, and she could not remember any either. The city ordinance is more than is years old, but records going back that far are not available. The experience in Urbana appears typical of the few jurisdictions that have made weight, size, and /or physical appearance a protected class. With the exception of San I ra ncisco, which ought Continued on next pace PAGE 15 see three or four charges of weight discrimination in a given year, places where weight discrimination is illegal typically get one such charge in a year — or none. There are only six cities in the U.S., and one state — Michigan — where weight discrimination is against the law. Madison, Wisconsin is another of those cities, and its ordinance prohibiting discrimination based on "physical characteristics" (including weight) has been on the books since at least the mid - r97os. But despite the fact the law has been around for more than 35 years, "We haven't had a huge number of cases," says Cmdv Wick, a Madison Department of Civil Rights' Executive Assistant. When an allegation of weight discrimination is brought to the attention of Madison's civil rights department, the allegation is usually part of a larger charge of discrimination that might also involve another protected class, such as race or gender. Rarely is a charge filed on -he basis of weight, size, or physical appearance discrimination alone — in Madison, or in other cities that protect it. This year, Urbana finally saw its first personal appearance charge in dec Ides, in a ease that did not involve weight, out clothing and hairstyle, and also involved sexual orientation. The >(: � Oncerns "a young lad), -who has had sonic static ar her job and some disciplinary action taken based upon what the company indicated was her pants and her hairstyle," says Rent. "She suspects and I suspect also that the underlying root is a concern regarding her sexuality — or concerns about customers' perceptions of her sexuality and how her personal appearance may impact that." In Michigan, weight and height discrimination are both illegal, but the issue rarely surfaces. "We don't get many cases at all. If we get one a year, that's a lot," says Sylvia Elliott, Director of the Michigan Department of Civil Rights. Michigan law allows employers to apply to the Michigan Department of Civil Rights for B,FOQ status, if they believe, for example, that being under a certain weight is a bona fide occupational qualification (BFOQ for a certain position. "The last BFOQ on weight that I remember was probably nine years ago," says Elliott. "We d( But finally, earlier this year Michigan many 9 encountered one weight If we g discrimination ease that attracted national year, $i attention Ali employee Zit a Michigan Hooters charged that the eating and dtinkirg establishment violated the state's civil righrs law when it allegedly told her she had to lose weight to improve her looks, or be fired. When Hooters allegedly placed her on probation for failing to drop those pounds, she resigned and filed a lawsuit. Elliott says she can't comment about the Hooters case, as it is still open. But while this is the first case involving weight discrimination her department has seen for awhile, charges that involve how a person — particularly a female — looks, and whether they are considered attractive, have come to her attention before. "We've had cases involving say, your strip clubs, where they may want all their waitresses to be blonde or to have a certain appearance. So it's not really new, and generally, I can say that in most cases, we are looking at what are the essential functions of the job. And then we go from there." Then there is San Francisco, where weight discrimination cases are hardly common, but at least more prevalent than elsewhere. Since 2000, weight and size (including height) have been protected by city ordinance in employment, housing and public accommodations. That was the year the city's Board of Supervisors held a hearing, and people showed up to testify that they had not been hired, or had been fired, because of their it get weight or size. "The testimony was Set's at all. compelling enough, one a to where weight and size were then added Vs a lot," as protected car gorses," explains -Nadia !3abella, Coordinator of I.GBT, Housing, Emalovirent and Public Continued can next wage }';`,Cali rti Accommodation Complaints for the San Francisco Human Rights Commission. Babella can name a number of interesting cases that have come before the commission, including one currently under investigation: At a San Francisco shop that serves refreshments (she prefers not to disclose the name of the business), a waitress was allegedly fired because a customer disapproved of her looks. The customer had sampled the store's product, then posted a negative review on a consumer web site. Ian his review, he also asked the question, `Why do you have a `fat girl' working in a health food place% That just goes against the mission of the place!' A few days after the reviewer labeled her a "fat girt," the server was fired. "They said it was because she was coming to work Iate," Babella said. "So we have to investigate." In another San Francisco case that was filed a few years earlier„ a ballet company allegedly refused to allow a young girl to enroll it its classes, because she was overweight. "She was a little girl, and they wouldn't even accept her into their classes because, they said, eventually we are going to want you to do perfornionces, and you don't look right for the performances." The ballet company probably had the right to choo whomever A wanted, or didn't want, for its performances, the cosnnn,ssion decided. "In the field of art, you are allowed a BFOQ — if a role calls for an Asian man, you could say we only want men and we only want Asians." But the classes were another matter. "We said you can't tell this little girl she can't even be in the class —you cane deny somebody because of their weight." But perhaps San Francisco's most widely reported weight discrimination case involved a 2 pound, 5- foot -8 aerobics instructor who was initially rejected by Jazzercize because she was not considered fit enough. `Jazzercise sells fitness," instructor Jennifer Portnick had been told in a rejection letter, and a Jazzercise applicant must "look leaner than the public. Portnick filed the first -ever complaint under San Francisco's then new law. "Shed been working for Jazzercise for a long time, and she was fit," Babella explains. "She said, "given my body and who I am, my genetics, this is what fit looks like for me." Jazzercise ultimately settled the case, Why there aren't more cases as a protected class. One reason more charges aren't brought in Madison is that not everyone who sight be a victim of weight discrimination knows it's illegal in that city, says Wick. "We do everything we can think of to make people aware," but there is no money to pay for an ad campaign, and budget cutbacks have reduced the ability of the Madison Department of Civil Rights to make people aware of their rights, she says. Although the Hooters case has focused attention on Michigan's weight discrimination law, both the public and employers are often unaware that weight and height are protected characteristics in Michigan, according to Elliott. "I don't think most employers know about the lava" Elliott says. Her If discrimination based on weight s as prevalent as advocates for acceptance of people who are considered overweight suggest, one might expect more cases at those few jurisdictions that have included weight, size, or physical appearances Rights Department tells them their policies must also conform with the state's additional weight and height protections. In San Francisco, despite a few high- profile cases, attitudes about weight are changing slowly anti most are still unaware of the city's ten -year -old weight- discrimination Continued on next wage Pl' IE r/ agency also monitors Despite a few high- businesses seeking state profile cases, attitudes contracts for about weight are Sroo,000 or more to changing slowly, and ensure that most are still unaware of they are in compliance the city's tern- year -old with state civil weight discrimination rights Laws. They are often protections. surprised when the Michigan Civil If discrimination based on weight s as prevalent as advocates for acceptance of people who are considered overweight suggest, one might expect more cases at those few jurisdictions that have included weight, size, or physical appearances Rights Department tells them their policies must also conform with the state's additional weight and height protections. In San Francisco, despite a few high- profile cases, attitudes about weight are changing slowly anti most are still unaware of the city's ten -year -old weight- discrimination Continued on next wage Pl' IE r/ Continued from previous page protections, says Babella. "This is an awareness, in certain, small circles," she says. "But not in the way, for example, that there is transgender awareness. We started working on that issue in the mid -9os, and now transgender rights are just so taken for granted." But perhaps the major reason more cases aren't filed is that many who are overweight have become so accustomed to discrimination that they expect it, and don't believe much can be done about it. "If they have a serious weight problem, they have probably encountered that kind of discrimination — they have been treated differently — all of their lives, and don't think that a government agency is going to be sympathetic," says Wick in Madison. in San Francisco, Babella says, "I think most people just kind of feel like, that's how life is." Some may also feel that being overweight and the discrimination they experience as a result is somehow their own fault, a nessage they may have also heard repeatedly. "Speaking as an individual who has carried around some extra weight almost all of my fife, I know that weight is one of those things that people aren't as i ercrptive to," says Wick. "Thev look atit es something that you have caused, rather than something that you're born with, like yow race of . our When individuals who experience weight discrimination do learn that it's illegal and they may be able to file a charge, the stigma over obesity — exacerbated by what some describe as a war against fat in the midst of an obesity epidemic — may keep some from exercising their rights. When businesses learn that they are facing a charge of a type of discrimination they may not have known was illegal, some may plead ignorance, and may seek to settle the charge quickly, "Frequently we'll hear from employers, `I had no idea that that was against the law" says Wick "The system is fairly forgiving of that kind of defense — it's not going to get you out of trouble, but you are not likely to pay a big fine or huge compensation, if e don't you're willing to correct things — if Corpora Q you're willing to reemploy the and the Is9 individual or image and eliminate the policy" But others who tends to hE do business in those that culturi few jurisdictions that protect weight, size, or physical appearance complain that such protectio are detrimental to a erarc or c�tvs business environmCm. "One of thc things I know hooters said is that's why it's so difficult to do bus:ncss in Michigan, because we have these kind of protections in place, "` says Elliott. She disagrees, and points out that businesses can ask for a exemption, in adva=nce, if they believe weight or size is a legitimate BFOQ for a particular job. "Or if you decide this is going to be your policy and you feel strongly about it, just know that you're going to have to defend it." It may be no accident that those cities that have prohibited weight discrimination tend to be near colleges, and have a reputation for being politically liberal. In such an environment, employers may grumble about the law, or a civil rights department's handling of a particular case, but are reluctant to mount a direct challenge, "I think there are some who would say that Madison is out there to the left pretty far, and in this economy, perhaps it's time for a change," says Wick. "But I think most employers are hesitant to criticize our civil rights law openly, so we haven't seen any significant attempts to repeal any portion of our ordinance other than the sexual orientation coverage. �Ye huge time was quite a long time ago, and of Iture here, course, that failed." 9 of body college another liberal college town, Urbana, II that human relations officer Rent believes t staple of that the city s major employers do not oppose the ordinance protecting personal appearance, and are less inclined to discriminate based on weight or apr af,anc:c than in other - localities, as P inarter of economic necewty [irbana s major Continued on next page PAGE 18 r N LI r 'r t they have been •d r o i rA governmen ag ency it A t t" i,s } employers (other than the University of Illinois) include a. hospital and two factories; small cafes, grocery stores and clothing shops provide the rest of the jobs. "We don't have a huge corporate culture here, and the issue of body image and all that tends to be a staple of that culture," says Rent. His observations suggest there is likely to be less discrimination on the factory floor than in the executive suite, at least when it comes to the issue of weight. "I don't think that you're going to see it (weight discrimination) as much in a more industrial, blue collar setting as you are in the corporate setting." And at Urbana's University - affiliated hospital. economics also mitigates against discrimination. "I come from a hospital environment, and there is such a shortage of most of the key positions in hospitals, that I can't imagine anyone being turned down for a position based upon their weight," says Rent. There may be prejudice. In any environment, there may be those who don't like people who are overweight, who believe "it's their own fault," who harbor hostility and embrace stereotypes about weight and obesity But these negative attitudes rarely find expression in adverse action, at leas* in Urbana and at its major employers, Rent believes. "It's not because people are better here, or more enlightened." Lt's more an issue of demographics and job availability, he explains. "If you'vc got a good person, von car's afford ro not hire them for a particular position, or throw them way hased upon their weight" RESOURCES: ORGMIZATIONS The National Association to Advance Fat Acceptance (NAAFA) A non -profit human rights organization dedicated to protecting the rights and improving the quality of life for fat people''NAAFA works to eliminate discrimination based on body size and provide fat people with the tools for self- empowerment through advocacy, public education, and support. http://ww ..naofoonliine,coml The Council on Size& Weight Discrimination ` A not - for -profit group that works to change people's attitudes about . weight and acts as consumer advocates for larger people, especially in the areas of medical treatment, lob discrimination, and media images. http: /Iwww.cswd.org /. Rudd Center for Food Policy & Obesity, A non -profit research and public policy organization devoted to improving the world's .diet, preventing obesity,: and reducing. weight stigma http://www.yaleruddcenter.org/ Minnesota State Council on Disability .State of Minnesota agency advises, provides technical assistance, collaborates and advocates to expand opportunities, improve the quality of life and empower all persons with disabilities: http : / /www.disability.state.mn.us The Association for Size Diversity. and Health (ASDAH) Professional organization composed of individual members who are committed to "Health At Every Size" (HAES) principles. Promotes education, research, and the provision of services which enhance health and well -being and are free from weight -based assumptions and weight discrimination. http://www.sizedivers Heathy Weight Network Promotes diet -free eating, active living, and a: respectful and positive environment that promotes "total health and well-being for people of all sizes." Provides research on obesity, eating disorders, weight and eating issues, dieting, and weight loss and gain, along with practical guidelines for "healthy living. http:llwww.healtliyweightnetwork.com/ Teaching Tolerance' A project of the Southern Poverty Law Center, Teaching Tolerance includes articles, interviews and other information on weight and size bias. www.tolerance.org. PAGE tq MO til'ben the Courts have weighed in on cases in which weight or obesity is part of the issue, results have been mixed Bonnie Cook, who at gao pounds and 52" tall was considered morbidly obese, applied for a job as an attendant at a facility for the mentally disabled, operated by the state of Rhode Island. She had previously performed the same job successfully at another state facility, but this time the state refused to hire her, due to her obesity Although she had passed a routine pre -hire physical during which a nurse found she had no limitations that would preclude her from doing the job, the state claimed that her weight would interfere with her ability to evacuate patients in case of an emergency placing her and her patients at risk. Cook filed suit, claiming her obesity constituted a disability under the Rehabilitation Act of 1973, which prohibits discrimination by federal agencies and agencies receiving federals dollars. A jury awarded her $1oo,0oo in compensatory damages, but her employer argued before US. Circuit Court of Appeals that she was not disabled within the meaning of the Act, since one who suffers from morbid obesity can choose to lose weight. The Court of Appeals was unpersuaded by these arguments, and ruled that Cook was clearly perceived as disabled by her employer — she was "regarded as having an impairment:," which meets the �tatutory definition of disability This sg93 case marled the first titre a federal appeals court had addressed whether, and under what conditions, obesity is cover( +d by the Iehabilitation Act, which is closely related to the ADA. J 41 is I T 1 In this 2007 case before the lith Circuit Court of Appeals, the employer prevailed. A telephone service tech whose job involved climbing and lifting equipment, Greenburg had been given e5 weeks to lose 5o pounds, to comply with a "safe load limit" for the equipment his job required. After he failed to lose the weight, his employer gave him no days to find another job. Greenburg sued under the ADA and a comparable state law, but the court issued summary judgement for BellSouth, finding that Greenburg did not meet the definition of a disabled individual under the ADA. VOTIMMIMMM Throughout the i98os and until 1994, United flight attendants were subject to mandatory weight requirements based on sex, height and age. Although both men and women were subject to these requirements and could be suspended or fired if they exceeded them, they were different for each gender. United required female attendants to V761 1 1 4 to 25 pounds Less than their male colleagues of the s�1 ne height and age; it based its requiremenrs on a table of desirable weights and heights fo1 men, published by the Continued an next page PAGE 2o Metropolitan Life Insurance Company, and a comparable weight table for women, established by Continental Air Lines. In 1992 a Iawsuit was filed on behalf of thirteen female flight attendants, who had tried to lose weight by various means, including dieting and purging, but had failed to meet United's requirements and had been disciplined and /or fired as a result. In a case that was subsequently certified as a class action, the plaintiffs contended that United's weight rules discriminated against women and against older employees, in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Although lower courts had ruled in United's favor and found its weight requirements were not discriminatory, in 2000 the gut Circuit Court of Appeals reversed a District Court rul ng, issuing summary judgment for the plaintiffs. The Circuit Court of Appeals found that United's requirements were discriminatory on their face, and could not be justified as a BFOQ (bona fide occupational qualification). "United made no showing that having disproportionately thinner female than male flight attendants bears a relation to flight attendants' ability to greet passengers, push carts, move luggage, and, perhaps most important, provide physical assistance in emergencies. The only evidence in the record is to the contraru" the court held. "Far from being "reasonably necessary" to the "normal operation" of United's business, the evidence suggests that, if anything, United's discriminatory weight requirements may have inhibited the job performanec of female flight attendants." The Department of Human Rights works collaboratively with community partners committed to our common vision of a discrimination free Minnesota. C. .,;, > versii 'Nriuti�� v The League of Minnesota Human Rights Commissions wwwhrusa.org/league The Human (Bights Resource Center www.hrusa.org . #dtacACT gefber The Advocates for Human Rights www.mnadvocates.org/ Advocating Change Together (ACT) wwwselfadvocacyorg The .Rlinnesota Department cf Human R. ghfs is not responsible far the content of exiemal websites. PAG F. 21 CAN EMPLOYER ASK ABOUT To submit a question to this column, visit the Department's web site where the column regularly appears, or senel your question to: The Minnesota Department of Iluman Ri r90 East stb Street. Suite yoo, St Paul, MNSsmr, Attu: By Rights. We mill notpublish your name or the names of individuals or companies you idcnti6I but you must include your name and phone number: Note: If you have a human rights question but wouldprefer that your question not be published call the Department at 65 r -296- 56(53 or r- Soo- 657-3 -04 (toll free) and ask for Intake. MARRIAGE PLANS? To the Commissioner: I am an engaged female, and my fiance lives in another city. My coworkers continue to ask if I will be moving or if he will, and whether I plan to stay at the company after I'm married. My boss recently asked the same question. Is this something an employer has the right to ask ?. The Commissioner says: Ifyou were applying for a job, it would be a violation of the Human Rights Act far a prospective employer to inquire about your marital status or your plans with respect to marriage and your fiance. But your current employer may ask wbetber you plan to remain with the company after your marriage, u0bout violating the Acts jn obibition against discrimination based on maritalstatus. If your employer did not ask, but were to assume that you would be leaving the company NJ oin your spouse, and denied you certain opportunities or treated you adversely because o f a ssumptions related to the change in your marital status, such adver treatment couldpotentially violate tin TRAINING PEOPLE WHO MAKE MORE THAN YOU DO To the Commissioner: I was promised a raise, but now I'm told there is a wage freeze and I won't get one. But the company is also hiring new people — at a higher rate than I'm paid for the same job — and expecting me to train them. Is this legal? The Commissioner says: It might seem unfair, but it is not illegal for an employer to pay newly -hired employees more than current orpreviously- hired employees, or for an employer to expect current employees to train better - paid new hires. An employer is also not required to give raises, and may choose to freeze the wages of some employees, and not others. Li hat an employer cannot do, under the Minnesota Huntean Rights Act, is to pay some employees less than others because of their race, national origin, gender, age. religion, €olor, or another characteristic spec�fically protected under the Act. Ilowever, if your race or another protected ehaiaeterirtic is not the reason for the pay issues that you cite, they do not appear to violatc the I Zeman RightsAct. PAGI, — The Commissioner answers your human rights questions STUDENT SAYS SCHOOL IS PRISON To the Commissioner: What rights do high school students have when the public high school they attend is punitive? The administration disrespects student rights, is more concerning about punishment than learning, and runs the school like a prison. Does the state have an agency that monitors what occurs in public schools? Something is really not right at this school. The Commissioner says: Ifsome students are beingpunished more harshly than others or are otherwise being treated differently — and if their raco, national orrgin. sexual orientation, a disability or another protected characteristic is the reason for this disparity —.such treatment could be in violation of the Minnesota Human RightsAct. Although a high school student who is under 18 could not file a charge with the Minnesota Department o f Human Rights, a parent orguardian could contact our intake unit to discuss filing a charge on the student's behalf However. if students are being treated in a manner that might be considered unrteeessarglypunitive, but race, national origin or anotherprotected characteristic is not the reason, the matter would be outside of our jurisdiction. School administrators genci - aqy have broad authority to set and enforce school rules, but if one believes that administrators have exceeded their authority; options would include i orttacting district administrators; a local Parent- leacher organization, an advocacy organization such as the Minnesota Civil Liberties Union, the Minnesota Department of Education ( http :ilwww.edauation.state.mn.us) or a private attorney. The Department of Human Rights cannotgive legal advice. CAN EMPLOYER REQUIRE CLUB MEMBERSHIP? To the Commissioner: Can an employer require an employee to belong to a civic club, group or organization (such as the Lions Club, the Rotary Club, the Chamber of Commerce, etc.)? The Commissioner says: If an employer- were to require employees to join a civic or other organization that had a particular religious affiliation, such a requirement could potentially violate the Human RightsAct by discriminating against employees who believed in a different religion, or in no religion, and objected to participating in activities that ran contrary to their beliefs, If the civic organization had other requirements that excluded or favored certain individuals based on otberprotected characteristics (required members to be o_ f a certain age or ancestry, for example), a requirement that employees belong to such an organization could also violate theAct. But unless discrimination is involved, while we know of no law that would p revent an employer from requiring employees to belong to a civic organization, the question is outside of our jurisdiction or expertise. Ton may wish to consultan attorney who specializes in employment law The Department o f Human Rights cannot , or ve legal advice. FIRED FOR FINDING DAYCARE To the Commissioner: Can an employer fire you for missing work due to losing daycare and trying to find new daycare? The Commissioner says: In most cases, yes — an employer can fire you for missing work to seek or provide daycare. In Minnesota and most other states, most employees are considered to be `at will. "That means an employer can generally fare an employee at any time for any reason (or no reason at all), as long as its not an illegal reason that would violate the state Human Rights Act or another law, An employer cannot discriminate in its termination policies based on a characteristic that is protected under the Act. So, for example, i f an employer fired a person Ofd particular lace orgender for missing work, but would not have fired a person of a different rare or gender in the same situation, there could be a violation of the Act. If you were terminated and have reason to believe that one of these protected characteristics was the reason, orpart of the reason,, you may want to contact our Intake Unit at 6S1-296-j663 to discuss yorer sitaeatioaz further: HARASSMENT OF STUDENT REG1RDID AS GAY To the Commissioner: My son has experienccd harassment in school for the past year. He is �n roth grade and is being called "ga)" "fag" lgot, and Continued on next page Continued from previous page "stupid." My son is straight, but has had to endure the name - calling for a Long rime. He was recently shoved so hard while getting a book out of his locker that the top of his nose was split down the middle, and he had to be taken to the Emergency Room. My son, once a B Honor Roll student, is now getting F's and D's in all classes but one, and has been depressed for months. I also have another son who has Asperger's syndrome, and the other kids call him retard to my loth grade son, saying, "you have a retarded brother." This happens in class, and the teachers do nothing to stop it. Can you help us? The Commissioner says: If your son is being harassed at school because he is perceived by otber students to be gat, and the harassment is pervasive enough to create a hostile environment for your child, school authorities have a duty under the Minnesota human Rights Act (MFIRA) to take timely and appropriate action reasonably calculated to stop the harassment. when they know or .should know that such conduct is occurring. If you have raised the issue with school authorities and they have not acted to remedy the situation, you may wish to contact our Intake Unit at 654- - 296-j663 07-7-800-65--3 to discuss frlrng a charge of discrimination. With respect to your other son's situation, disability is also a protected ebaracteristie under the MHRA, And if your other child is being harassed because he has. or ispercerved to have, a disability sci oel authorities also have a duty to take appropriate action. If your child with Aspergers syndrome is not being ba. assed d °redly, but camvnents about him are being made to your non - disabled son, it is possible that these harassing comments could also result in a claim under the MHR4. The MI-IRA protects individuals from discrimination because of their association with persons who are, or are perceived to be, disabled Thus, you may also wish, to discuss the comments related to your sonsAsperger's syndrome with our Intake Unit, Please note that under the Act, charges must be fled within one year o f the date the discrimination tookplace. HOW MANY CAN LIVE IN AN APARTMENT To the Commissioner: Can two adults and three children five in a one bedroom apartment? The size of the bedroom is to x 14, the youngest kid is three, and the oldest is seven. The apartment is located in St Paul. The Commissioner says: The Minnesota Human Rights Act prohibits discrimination in housing on the basis o f what's called "familial status," and if a landlord were to have an occupancy rule that was unreasonable and intended to keep out familn'es with children. such a rule could violate that part of the Act. But landlords can set reasonable occupancy requirements, and often cities also have ordinances that limit the number ofpeople who can live in air apartment of a cer win size; landlords would be required to follow these city codes. In the city of Saint Paul's municipal code, Sec, 34.13, would appear to set these occupancy requirements ISM are not experts on local housing codes, and cannot advise you on how this section migbt apply to year situation. lira may ,e-isb to contact the city of Saint Paul for crone information. W)u car, telephone (65r)266 -8989, ore tit the city's w e site at httfi / /wunc� . sipauIgot CAN CONDO BYLAWS KEEP OUT KIDS? I live in a condo in Minneapolis, and my condo association has policy in its bylaws that states that no child 18 years of age or younger shall be permitted to reside in any unit, or stay there as a visitor or guest, except on a temporary basis for no more than 3o days. I have not been discriminated against directly by this policy However, I was denied refinancing by my mortgage company because of it. I told the condo association board and they acknowledge that this policy is outdated and possibly illegal. But they will not change the bylaws, since they don't plan to enforce the policy. Some questions: Is this policy illegals Does the board have a legal obligation to remove it from the bvlaws? Or if the board won't remove it, does the board have a legal obligation to enforce it, since its in the bylaws, even if it is illegal? I really want to refinance, but I'm finding it difficult with this policy in the bylaws. My ba k wouldn't even Look at my application, and the entire condo building is on a "no loan" list. The Commissioner says: Under the Minnesota Human Rights 1ct, it is illegal to refuse to sell, rent, or lease any realpropenq because of familial status.TheActdefi'nes familial status, " in part, as the condition of one or mare minor children lrvin with a parent or legalguardian. So a landlord or condo associations that refuses to rent Continued on next page PAC.I: 3 to a family with children or to allow child en to live with theirparents, because of familial status, would be in violation of the Act. The Act provides exemptions that may apply in certain cases. For example, the provisions against discrimination based on familial status do not apply to an owner- occupied building containing four or fewer units, or to housing for elderly persons, intended for and occupied by persons 62 or older, or 55 or older in some cases. Landlords may also legally refuse to permit children i f theirpresence would conflict with city ordinances or other laws restricting the maximum number ofpeople who can live in any one unit, but these maximum- occupancy rules may not be applied in a discriminatory fashion to restrict occupancy by families with children and not others. No may wish to contact on?- intake unit at 65,r -296 -5663 to discuss your situation fztrther and the possibility of ding a charge under the Minnesota Human RightsAct. We cannot speak to The other legal issues y our email raises, or to other recourses you may have with respect to the condo association's rules and your relationship with a potential lender. For those issues, you may wish to consult with a private attorney. The Department o f Human Rights can riot give legal advice. COLA DENIED FOR NONUNION WORKERS I am an emplo5ec fora Minnesota county. We were told thar cost of living allowances (COLAs) would not be given out this year to any county en ee, union or non union. But I have just found out that the union employees are in fact receiving their COLAs for zoio, while the non -union employees are not. Is this discrimination? And is it legal? The Commissioner. sags: Under the Minnesota Human Rights Act, it is illegal to discriminate in employment based on certain characteristics that are specifically protected, such as race, religion, color, creed, age, gender, disability, national origin andsexual orientation, among others. But an employer may treat employees differently for reasons not covered under the Act, including union vs. nonunion status. While such treatment may or may not seem fair; it would not be considered illegal under the Act. RETAILER WON'T HIRE i5-YEAR-OLDS To the Commissioner: Is it legal for a retail company to advertise that applicants must be 16 years old to work there, or is that age discrimination? If a company will hire people under r6, but won't let therm work past certain hours, is that legal? The Commissioner says: The Minnesota Human RigbtsAct' prohibition against age discrimination in employment covers all workers over the age of majority, which in Minnesota is r8. So if an employer were to refuse to hire applicants younger than 18, or fan employer were to ren rict the hours that employees younger than r8 could work, such practices would not violate the Act unless thcy'reere applied inconsistently because ofsome otherprotected characteristic. (For example, f an employer required that employees of a certain race orgender be r8, but had different rules for employees not of that race or gender, such a practice could be illegal under the Act — but it would be considered race or gender discrimination, not age discrimination) There are also state and federal child labor" laws that limit or restrict the employment of workers younger than 18, including the hours they can work. By state law (Minn. Stat. r8rA.os), aperson Younger than 16 may not work before y AM or after 9 PM, with an exception made for newspaper carriers. There are additional restrictions on the hours those under 18 can work on "schools days.' These laws are separate from the Human Rights Act and are not enforcedl the Department of Human Rights, but by the Minnesota. Department of Labor and Industry. in the case of state laws. tau can find out more information about these laws here: http .11wwzew.dolistate.mn.uslls / MinAge.asp DOES EMPLOYEE NEED LETTER FROM PHYSICIAN? To the Commissioner: My physician has written a prescription requesting that I not be scheduled to work a night shift at our agency I have forwarded this Prescription to the FIR. department here at work, who emailed me that we may need to have further discussion about this matter. I have several physical health and mental health concerns sure nmcling a scheduling change at our agency If P V{ E 25 Continued from previous page HR wants to discuss this topic with me, do I need to go into detail over what my problems are, or should I get a detailed letter from my physician and therapist? The Commissioner says: The Human Rights Act compels employers with r or more employees to fully consider whether or not an employee with a disability can per form the essential duties of the position in question, with or without reasonable accommodation (which may include part -time employment in that position), provided it does not impose undue hardship on the employer orpose a risk to health or safety. Then the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about hirlber disability and functional limitations. The employer is entitled to know that the individual has a disability for which reasonable accommodation is needed, however, an employer cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. In most situations, an employer cannot request a persona's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. 2 "our ennployer mug be sati f ed with talking to you about your situation, but ensplayers are permitted t-o make mental or• physical impairment- relatedinquarzes ofdoctors, with employee consort. if they are reasonable and necessary to the e fort to Make accornrnodzt,�ma of a disability or con faun the medical necessity of contirueinag to provide an accommodation. IS REQUIRING APPLICANT TO LIST ALL JOBS AGE DISCRIMINATION? To the Commissioner: I understand that it is illegal for prospective employers to ask your date of birth. Recently, I applied to a Twin Cities school district that did not ask for date of birth, but did require that I list all jobs I have had my whole life! This listing of jobs (mine went back to the early yo's) in essence will give the employer a fair estimate of an applicant's actual age. Did the school district violate any law? If not, perhaps this kind of question is a loophole that should be closed. The Commissioner says: The .Minnesota Human RightsAct provides that it is an unfair practice far an employer to "require or request the persona to furnish information that pertains to race, color, weed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation, or age_." With few exceptions, it is discriminatory not to hire someone due to age. Employers are not prohibited from inquiring about an employee's entire work history even though this information may lead to an inference about the applicant's age. In some cases, employers may be held liable for negligent hiring if they do not verify applicants' conduct at past employers. But i f you believe an employer has used your lengthy employment history to drauurn inference o f your ,rr,e, and thmn decided not to hire you because of your agc, you may wish to contact our intake unit to discuss filing a change of dascrinnination. The fact that the ennployer gathered that information would help you establish that the employer was aware o f your approximate age at the time it made its hiring decision. ABUSIVE EMPLOYER JUST YELLS LOUDER Is having an employer stand over your desk, yelling, swearing and verbally abusing you a cause for a discrimination case? He will not listen to explanations. He just yells louder. The Commissioner says: Whether a boss's behavior might constitute discrimination under the Minnesota Human Rights Act would depend upon why he is apparently acting in an abusive manner: A charge of discrimination must be based on a characteristic specifically protected under tbeAct_ Ira employment, these protected characteristics include race, religion, gender; color, creed, national origin, disability, age, sexual orientation and others. So i f your boss-'f verbal abuse or other obiection able behavior somehow relates to your race. gender, age, or another protected characteristic. you may wish to contact our Intake Unit at 65r- z96 -f663 to discuss your situation further. However, ifyour boss is yelling for some other reason unrelated to a protected characteristic, sank behavior may be unfair and counterproductive, but it is probably not illegal under the Human RtghtsAct. The answers in thLse columns are not intended as legal advice.Tne Department of Human Rights does not male a judgement on any case without carefully examining all the facts. PAGE A