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Most employers understand that it is illegal to discriminate against someone due to their race, gender, or age in employment decisions. Recent news is now questioning whether it is acceptable to discriminate against existing or potential employees based on their weight or appearance.

A waitress at a Hooters restaurant was recently in the news claiming that Hooters recently warned her that she was required to loose approximately 10 pounds in the near future or face possible discharge.

The waitress responded with filing a weight discrimination lawsuit against the restaurant chain under a unique Michigan statute known as the Elliot-Larsen Civil Rights Act. Among other things, this statute bars employers from discriminating on the basis of height or weight. See MICH. COMP. LAWS § 37.2102 (1976).

In another suit, a former banker at Citibank in New York City has filed a lawsuit against the bank, claiming that she was terminated because she was “too sexy” and that she frequently wore clothing which was too revealing.

This lawsuit was filed under the New York City Human Rights Act, which provides broad protections against employment discrimination. The New York City Human Rights Act’s broad definition of gender discrimination includes “a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” See, New York City Human Rights Act §8-102(23).

Both of these cases suggest that former employees are looking for ways to allege discrimination against former employers outside of traditional and well-established categories, such as sexual, racial, physical disability and age discrimination. Whether the courts, Congress, or state legislatures will be receptive to this trend remains an open question.

Both the case against Hooters and the case against Citibank are unique in so far as both cases rely upon particularly broad state or municipal statutes. To this date, Michigan remains the only state in the nation which expressly protects employees from discrimination based upon their weight or height. Several other local governments, including New York City, San Francisco, Santa Cruz, and the District of Columbia, bar discrimination based upon an employee’s general appearance.

The District of Columbia Human Rights Act provides very broad protections to employees from discrimination. Under the District of Columbia statute, employers are prohibited from discriminating against any employee on the basis of “race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation “ See D.C. CODE ANN. § 2-1402.11 (1977).

Employers are barred from using any one of these categories in refusing to hire an employee, terminating employment or otherwise discriminating “against any individual with respect to his compensation, terms, conditions or privileges of employment, including promotion”. Employers in the District of Columbia should be particularly cautious about terminating employees for any appearance based issues, as personal appearance and the expression of an employee’s gender identification are protected.

Outside of the District of Columbia, Michigan, and the other local governments barring discrimination on the basis of appearance, it appears unlikely that many state legislatures will expand employment protections to include weight or general appearance in the near future. Locally, it does not appear that there is any legislation pending before the Virginia General Assembly expanding employment protections to include new categories. Although Virginia does have a Human Rights Act, the protections provided by the Virginia statute are limited to employment terminations based on race, color, religion, national origin, sex, pregnancy, childbirth, or medical conditions related to childbirth. See VA. CODE ANN. § 2.2-3901 (2005)

Under Virginia law, a private cause of action is only provided for discriminatory discharge (as opposed to other employment decisions, such as failure to promote) and the Virginia statute only applies to employers employing more than five but less than fifteen employees (Title VII only applies to firms employing at least fifteen employees).

On the Federal level, although there has been a renewed push after the 2008 election to broaden employment protections to include sexual orientation and gender identity, there is currently no legislation before Congress to protect an employee from appearance-based discrimination. At this point in time, it is unlikely that Title VII will be amended to include appearance-based protections.

It should be noted, however, that under certain circumstances, discrimination due to weight may be considered a violation of the American With Disabilities Act, to the extent the employee’s weight results from a physiological condition.

Although the Citibank and Hooters cases are newsworthy, it does not appear that there is a concerted effort to expand employee protection to appearance discrimination at the federal level, or in most state legislatures. Nevertheless, employers and human resources personnel should make efforts to remain up to date on changes to federal and state laws relating to prohibited categories of discrimination in order to avoid costly litigation.