Weight bias found in workplaces and courts, advocates say.

Bias based on weight is pervasive, and it can color an employer's perception of an employee as well as a juror's perception of a plaintiff regardless of whether weight is relevant, lawyers and trial consultants say.

Weight bias has increased in recent years, said Rebecca Puhl, an associate research scientist with the Rudd Center for Food Policy & Obesity at Yale University. "It's surprising that the bias has worsened" as the number of overweight people has grown, she added.

An estimated 66 percent of U.S. adults are overweight or obese, according to the National Center for Health Statistics.

"Fat discrimination is one of the last 'safe' types of discrimination," said Carole Cullum, a San Francisco family lawyer and board member of the National Association to Advance Fat Acceptance (NAAFA). "People feel OK making jokes about fat people, but it's not OK."

Massachusetts is considering a bill to add a prohibition against weight discrimination to its antidiscrimination law. The state of Michigan and the cities of San Francisco and Santa Cruz, California, ban weight discrimination; the District of Columbia prohibits discrimination based on appearance.

Such laws address basic civil liberties and require that people be judged based on their abilities, said Sondra Solovay, a San Francisco lawyer and director of the Fat Legal Advocacy, Rights, and Education (FLARE) Project, which NAAFA established to provide guidance for victims of weight discrimination and their attorneys. "Most people have some kind of bias about weight," but they should still treat people fairly, she said.

In some cases, people who experience weight discrimination may have a cause of action under the Americans with Disabilities Act (ADA). The Sixth Circuit held in September that "to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition." The plaintiff, Stephen Grindle, claimed that his employer violated the ADA by firing him because of his morbid obesity, but the court said he failed to show that he suffered from an ADA impairment. (EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006).)

Weight discrimination differs from other types of discrimination in that "you don't have to look long and hard for it--it's not hidden," Solovay said, noting that some companies have instituted policies for employees' height-to-weight proportions.

An experiment conducted in Sweden found that some employers judge potential employees based on weight. Researchers sent made-up job applications, including photos, in response to job openings in various occupations. The photos depicted either average-weight or obese people (the latter group was created by manipulating the photos of the average-weight applicants to make them appear obese); the applications were otherwise identical. The obese applicants received 20 percent fewer calls for interviews than their average-weight counterparts. (Dan-Olof Rooth, Evidence of Unequal Treatment in Hiring against Obese Applicants: A Field Experiment, Inst. for the Study of Lab. (Bonn, Germany), Paper No. 2775, May 2007.)

The problem of weight bias extends beyond employment discrimination, Puhl noted, saying that overweight people also face bias from their health care providers and teachers, for example.

Many jurors automatically view overweight and obese plaintiffs negatively, said Amy Pardieck, a trial consultant in Bloomington, Indiana, who has seen weight bias in her focus groups and postverdict interviews. "This is a subset of 'unattractive' bias and anti-plaintiff bias in general," she said.

Sandie Taylor of Bath Spa University in England conducted a study with mock jurors and found that they were less likely to find attractive criminal defendants guilty and more likely to find less attractive defendants guilty. The study will be published at the British Psychological Society's conference this summer.

William Lightfoot, a Washington, D.C., lawyer, said that when he has represented overweight plaintiffs, weight affected how jurors perceived them. Because of a greater emphasis on personal responsibility, "jurors may look at overweight people and think, 'they're not even taking responsibility for their own bodies,'" he said. "It feeds on the notion that the plaintiff isn't deserving of a verdict in his or her favor."

While jurors might not come out and say they don't like the plaintiff because he or she is fat, they might say the plaintiff seems lazy, said Douglas Keene, a trial consultant in Austin, Texas. "It's a tremendous voir dire challenge. People recognize that you're not supposed to judge people based on appearance," he said, so "supplemental juror questionnaires become very important."

Lawyers are becoming more aware of the need to talk about weight bias, said Diane Wiley, a Minneapolis jury consultant. "It's very insidious and hard to root out," she said.

If a client's weight is not relevant to the case and his or her lawyer fails to address it, "the jurors will interject their own theories--that weight is a reason even if it's not," Keene said.

Puhl said she sees Massachusetts's proposed bill as a positive development. "We're at the beginning of a movement that's just starting to generate public awareness," she said.