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November 28, 2006 > Watercooler Counsel

Watercooler Counsel

by Rich Proulx & Malinda Tuazon

Rounded Out

Q:  I have been trying to get a job in retail, unsuccessfully.  I am overweight.  Whenever I drop off applications, I see all the sales workers are young and pretty.  Can I file a discrimination complaint?

Full bodied and perky
Fremont, CA

A:  It's no crime to love the beautiful people.  No law we're aware of makes it illegal to discriminate based on lack of charisma or being ugly (neither of which, I'm sure, applies to you).  However, there are plenty of other ways to discriminate that are illegal, as Abercrombie & Fitch discovered last year. Abercrombie & Fitch had a reputation for hiring hip sales people.  Nothing wrong with that.  Except that it seems that their definition of hip didn't include a lot of women or non-whites.

That little oversight cost them $40 million to settle the class-action lawsuit filed against them.  Discriminating against people 40 and over is a violation of Federal law.  If you are morbidly obese, you could have a case for disability discrimination.  As to being discriminated against because you are a few sizes above the norm, that's not against Federal law or any State law we're aware of.  But the tide may be turning.  Perhaps it's a reflection of those "San Francisco values" we've heard a lot about lately, but the City of San Francisco prohibits discrimination based on weight (and height).  Wouldn't it be nice if we all treated each other fairly and didn't need all these laws?

Q:  I recently promoted a new shift supervisor without posting the job first.  Now, I have a complaint from another employee saying she was discriminated against because she wasn't given the opportunity to apply for the job.  Can this be considered discrimination?  The person I selected is by far a better choice
Phil T.
Newark, CA

A:  Just because you didn't give your employee a chance to apply for the job, doesn't mean you discriminated against her.  Truth is, you didn't give anyone a chance to apply.  You actually treated everyone the same.  So, this is not discrimination.  That doesn't make you immune to allegations of discrimination in who you selected, of course.

Truth is, some employees get pretty steamed when they don't a shot at a promotion.  Their "unfair" alarm bells start ringing.  When that happens, you can find yourself spending more time that you'd like defending your actions.  In the future, you might consider posting promotions, and interviewing your internal applicants, even if you know who you are going to promote.  The process is better for morale because your employees feel they are being given an equal opportunity.  By the types of questions you ask, they might have a better understanding of why you selected the person that you did.  Lastly, if an employee gets an equal chance to apply, but doesn't, it'll be awfully difficult for him to complain of foul play later.

November is Diabetes Month.  According to the CDC, two-thirds of Americans are overweight.  Being overweight is linked to many increased health risks including diabetes, coronary heart disease, stroke and several different types of cancer. Send your questions to Rich is a former Supervisory Investigator and Malinda is a current Federal Investigator for the Equal Employment Opportunity Commission Identifying information in the questions may be fictional.

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