Global Policy Forum

By Steven Greenhouse

Joseph Connor was offered a job as a cook at a McDonald's here, he finally seemed to have found a way to help support his five children. But along came a snag. The McDonald's manager told Mr. Connor, who is 6-foot-1 and weighs nearly 420 pounds, that he could start work as soon as his specially ordered uniform arrived. He waited days, then weeks, then months. The restaurant chain says his uniform never arrived and his job never started because the franchise had changed hands. But in Mr. Connor's view, there could be only one reason: the restaurant's managers had concluded he was too fat to work there.

"I felt hurt," he said, adding, "They kept saying the uniform hasn't come in yet. You can't be doing this to people." So Mr. Connor sued last year, and his claim that McDonald's illegally discriminated against him for being obese has put him at the forefront of a growing number of overweight people who have brought lawsuits charging that employers have wrongly refused to hire them.

Twenty-seven percent of Americans are obese, and that percentage is climbing, a statistic that shows up in the news day after day, often coupled with criticism of fast-food purveyors like McDonald's. But legal experts say that despite the surge in the overweight population, the law offers few protections against discrimination based on weight. While the nation's fair-employment laws bar discrimination based on race, religion, color, sex or age, those laws generally do not prohibit employers from discriminating based on physical appearance, whether it is the color of one's hair or the circumference of one's waist. Some advocates for the overweight say this discrimination has grown even worse as more employers focus on hiring good-looking people.

Many overweight Americans are turning for help to the Americans With Disabilities Act, but they are using it in two different, seemingly contradictory, ways. Some claim that their employers should not discriminate against them because they are disabled. Others, using an argument that has had more success in the courts, insist that they are not disabled, and that employers unfairly assumed they could not do the job. "You're making a determination of people's capability and their health based on how they look, and that's not fair," said Jeanette DePatie, spokeswoman for the National Association to Advance Fat Acceptance. "Discrimination against fat people is bad for everybody because employers leave out some very talented and wonderful people."

In addition to the lawsuits, advocates for the obese are lobbying to enact laws — like those in Michigan, Washington, San Francisco and Santa Cruz, Calif. — that bar employment discrimination based on physical appearance. Mr. Connor has invoked the Americans With Disabilities Act to assert that McDonald's illegally discriminated against him by concluding that he was so fat that he was too disabled to work. "They didn't think he could be a cook," said Mr. Connor's lawyer, Gary Phelan, adding that his client had worked as a cook for six years. "If they thought otherwise, they wouldn't have concocted this story that they ordered his pants and his pants didn't come in. The only thing that should matter to McDonald's was how he cooks, not how he looks."

Last year, Jennifer Portnick, a 5-foot-8, 240-pound aerobics instructor from San Francisco, accused the Jazzercise fitness company of illegally refusing to give her a franchise because of her weight. Jazzercise ultimately agreed to give franchises to overweight instructors, in accordance with a San Francisco law that bars discrimination based on weight or height, exempting the Police and Fire Departments and the 49ers football team.

In July, David Warner, a 350-pound Connecticut man, sued the tree-removal company that laid him off, accusing it of illegal discrimination. A co-worker, he said, told him that a manager thought he was so fat that he would drop dead on the job.

Also in July, Susan Wantland, 5-foot-1 and 320 pounds, sued a McDonald's in Smithville, Mo., saying it discriminated against her by taking two months to get her a uniform, giving her just two hours of work a day and making her clean the restaurant even though it originally hired her as a cashier. Like Mr. Warner, Ms. Wantland contends her employer illegally treated her as disabled. "There ought to be a law," said Ms. Wantland, who put on 150 pounds after being injured in a car accident in the 1980's. "If you are capable of doing a job, then I think you ought to be able to have the job. I realize I shouldn't be able to go to Hugh Hefner and say, `Can I pose for Playboy?' But as long as you're within your boundaries, as long as you're qualified, you should have it."

Bill Whitman, a McDonald's spokesman, said the company could not respond to Ms. Wantland's claims because it was still studying her legal papers.

In most employment-discrimination cases involving obese plaintiffs, courts have ruled that obesity is not a disability and that employers are free to discriminate against overweight people. But some courts have concluded that people with morbid obesity — usually defined as having twice the recommended body weight for one's height — have a disability and that discriminating against them violates the Americans With Disabilities Act.

"Morbid obesity is not a disability in isolation," said Sharona Hoffman, a professor of employment discrimination law at Case Western Reserve University. "Obesity can be a disability if it's associated with other problems such as mobility problems, breathing problems and heart problems."

Still, obese plaintiffs — even the morbidly obese — have been most successful not when they claim a disability, but when they assert that employers refused to hire them because they wrongly regarded them as having one. The disabilities act bars employers from treating someone as having a disability when that person is not disabled and can do the job. "Sometimes, regardless of the reality, employers will think an employee can't move or will drop dead of a heart attack," Ms. Hoffman said.

In an important decision involving obesity, the United States Court of Appeals in Manhattan ruled in 1997 against John Francis, a firefighter in Meriden, Conn., who accused the Fire Department of violating the federal disabilities act when it suspended him for one day for being overweight. The department's maximum acceptable weight was 188 pounds, while Mr. Francis fluctuated between 217 and 247 pounds. Finding for the Fire Department, the court concluded that Mr. Francis was not disabled and wrote that "obesity, except in special cases where the obesity relates to a physiological disorder, is not a `physical impairment.' " The court also ruled that the Meriden Fire Department had not treated him as disabled.

But last year the New Jersey Supreme Court reached a different conclusion. It ruled that Regina Viscik, 5-foot-9 and nearly 400 pounds, was disabled under the state's Law Against Discrimination, which uses a broader definition of disability than the federal act. Ms. Viscik was fired on her fourth day as a billing clerk, and a consultant for her employer later told her that she was dismissed because a top manager thought she was having difficulty moving around the office.

The court noted that a doctor had testified that Ms. Viscik had a metabolic disorder that resulted in obesity by preventing her body from breaking down fats. Moreover, the doctor said her obesity had contributed to degenerative arthritis, obstructive lung disease and depression. "There's no magical mathematical formula to say this obese person has a disability and this other person doesn't," said Peter Petesch, a Washington lawyer who represents employers in discrimination cases. "It's an individualized assessment. Generally, to be fat or dumpy-looking or not as good-looking as the other applicant isn't enough to prevail under the Americans With Disabilities Act."

Mr. Connor's main legal argument is that McDonald's treated him as disabled. Before applying to McDonald's, he was a chef in a shopping mall's food court, but he was laid off during a winter slowdown and went on welfare. "The welfare people said they would discontinue my benefits if I didn't find a job soon," he said. "My wife works herself to death, and I wanted to do whatever I can to make a buck." Mr. Connor weighed 270 pounds in 1990, he said, then put on 130 pounds in the months after he was hit in the stomach by a stray bullet while walking in a New Haven neighborhood.

Four months after being told he could begin work once his uniform arrived, he visited the McDonald's to ask where things stood. He said no manager would see him. While there, he said, he saw help-wanted signs, and an acquaintance working there told him that a cousin had been hired the day before and was to begin work the next day.

Lawrence Peikes, a lawyer for McDonald's, insisted that Mr. Connor was not discriminated against because of his weight. "He was offered a job, there's no dispute about that," he said. He said that while McDonald's was waiting for special-order pants with a 54-inch waist for Mr. Connor, McDonald's sold the restaurant to a franchisee who evidently knew nothing about plans to hire Mr. Connor. The suit has not yet come to trial.

Mr. Connor questioned why McDonald's did not let him start work in the two months after it offered him a job and before it sold the restaurant. "McDonald's tends to hire a lot of people without much training, but it refused to hire Joseph, who's cooked for six years," said his lawyer, Mr. Phelan. "There's only one common-sense way to explain it. There are some very talented people who happen to be extremely overweight, and that shouldn't be held against them."

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