Specifically, Michigan’s anti-discrimination statute, the Elliott-Larsen Civil Rights Act (ELCRA), prohibits an employer from failing or refusing to hire, discharge, or otherwise discriminate against an individual in employment because of weight. MCL 37.2202(1)(a).
But employees still must meet their evidentiary obligations to present a weight discrimination claim. If this burden is not satisfied, the suit will often be decided for the employer by way of motion rather than trial.
Plaintiff claims employer made repeated weight discrimination comments
This scenario recently played out in a suit involving a claim of weight discrimination. A dental hygienist sued (Harris v Hutcheson) claiming she was discriminated against and terminated due to her weight. To support her claim, she testified that the owner of the dental practice and co-defendant (Dr. Hutcheson) “always” commented about weight and health. She contended these comments showed his bias against overweight people:
- Dr. Hutcheson discussed diet as a means of weight loss, including telling plaintiff she should eat only fruit before noon if she wanted to lose weight;
- He commented that plaintiff was “waddling down the hall;
- Dr. Hutcheson commented the weight around plaintiff’s neck caused her to have stripes around her neck when she tanned; and
- He expressed surprise that plaintiff worked out, which plaintiff inferred was a criticism of her weight.
Employer responds with non-discriminatory reason for termination
However, the Court did not find plaintiff was discriminated against due to her weight. Instead, the Court noted that plaintiff had been employed for 22 years. And in October 2012, a female dentist (Dr. Dyras) began working with defendants. Dr. Dyras repeatedly disagreed with plaintiff over patient care. These disagreements continued into August 2013. Dr. Dyras advised Dr. Hutcheson plaintiff should be terminated for insubordination. Plaintiff was later terminated at the end of August 2013.
With this background, the Court reasoned that even if a jury believed that defendant-Hutcheson made the statements identified by plaintiff, they did “not require the conclusion that unlawful discrimination based on plaintiff’s weight was at least a motivating factor in Hutcheson’s decision” to terminate her. Absent direct evidence of discrimination, plaintiff had to rely on what is referred to as the McDonnell Douglas framework.
McDonnell Douglas is – to simplify – like an evidentiary tennis match; a plaintiff must “serve up” evidence to establish a prima facie case of unlawful discrimination. The defendant then must respond to the evidence by returning a “legitimate, nondiscriminatory reason for their employment decision.” At that point in the volley, a plaintiff must respond to defendant’s evidence and show the reasons are not valid, but merely pretext for discrimination. Here, the plaintiff failed to win the point:
… there is no reasonable basis to infer that, after 22 years, Hutcheson suddenly decided to terminate plaintiff because of her weight or even in part because of her weight. Rather, it is plain that what had changed, and what motivated plaintiff’s termination, was Dyras’s arrival at the practice and her disagreements with plaintiff regarding patient care. While plaintiff maintains that insubordination was a mere pretext, there is nothing but her subjective claim of discrimination to establish that weight-related animus motivated Hutcheson’s termination decision.
This case, like a sex discrimination claim suit we recently covered, illustrates the difficulty plaintiffs have in bringing a successful weight discrimination claim.
It also highlights the role a judge’s common-sense plays in resolving discrimination lawsuits. It was evident from the Court’s opinion that the weight discrimination claim simply did not make sense; Plaintiff presented no evidence her weight changed or fluctuated upwards toward the end of her employment. So the court was left asking why after 22 years of employment would defendant now decide to unlawfully discriminate against plaintiff.
Further, understanding what is prohibited under state and federal anti-discrimination workplace laws is critical to both employment law compliance and a successful defense. Simply put, the closer you get to the fault-line, the more likely it becomes an adverse employment decision or statement will cross the line and become evidence to show bias against an overweight employee.
For more information about complying with federal or Michigan employment discrimination laws, contact employment attorney Jason Shinn. Since 2001 Mr. Shinn has addressed state and federal employment law issues on behalf of clients, responded to discrimination complaints filed with the EEOC and state agencies, and litigated these disputes and federal and Michigan courts.