Legislation and Litigation

   On March 7^th, 2011,  AB90 (Assembly Bill 90) , a bill authored by Assemblyman Richard Segerblom of Nevada, went before the Assembly Commerce and Labor Committee of Nevada and action (if any) has yet to be taken on this bill. Here is an article about the hearing:

http://forums.nossaonline.org/showthread.php?1457-Business-balks-at-bill-to-stem-workplace-bias

   It amazes me how these businesses and opponents of this bill come out and say that this piece of legislation would cause businesses to be leary of location to Nevada or hiring more people for fear of being sued, yet will not support a repeal of Title VII of the Civil Rights Act of 1964, which bans discrimination of people by gender, race, disability, religion or sexual orientation. I wonder how many law suits that particular piece of legislation has spawned? Has that been really detrimental to businesses? If that is their argument, why do so many places hire those protected by that same act if they really FEAR litigation? The short and overweight should be protected from the same discrimination as they. Perhaps these people really aren’t in fear of litigation as much they are in fear of treating the short and overweight as equals!

   What these people fail to realize is that suing an employer is not exactly a resume booster now, is it? Considering how these companies like to perform background checks on their employees or potential hires, it is a pretty big risk they are taking on their own livelihoods and earning power.

   In order to take an employer to court over discrimination, the act would have to be pretty blatant, systemic and the prospective plaintiff would probably need a few witnesses. .Even if they win a suit, will it be enough to sustain them while they are hard at work looking for other employment?

   Let’s take a look into how many law suits have been filed in Michigan; Santa Cruz and San Francisco; Madison, WI; Washington D.C.; Binghampton, NY and Urbana, Ill,. since they introduced their respective bills to ban appearance based discrimination (perhaps Tray Abney. Scott Walker and, in particular, Shelley Chinchilla should take heed and do their own research about this subject).

   According to Peggy Howell, since the Elliot Larsen Act was passed circa 1976, there have only been four law suits in the state of Michigan; four… in thirty years plus.(I wonder how many law suits there have been in the same state based on gender and race discrimination alone). However, according to J.J. Prescott, a law professor at the University of Michigan, there is about one case a year filed for weight discrimination.. In 2005, a man was awarded $284,000 for being terminated due to his weight which stemmed from a medical condition. Just recently, two Hooters waitresses in Michigan,  also have filed suit for weight discrimination. There aren’t really enough law suits to speak of to scare employers away from hiring or opening their doors for business in Michigan.  I have yet to hear of a lawsuit brought in Michigan for height discrimination but it is possible.

   Now, there may be the argument saying "See, of course there aren't many law suits pertaining to appearance based discimination because it doesn't exist and therefore, no need for protection."   Well,  first, that wasn't the argument these aforementioned people put forward now was it?  They know it exists, which is why they fear the floodgates will open.  Second, if no protection exists, with the exception of Michigan and other places, people who experience this won't be given much of a remedy; it may even be more detrimental to them to seek justice, sadly. 

   Just ask Sergeant Patrick Burns of the Bayonne police department of New Jersey, who for years was subject to ridicule and demoralization due to his short stature.  When he finally sought recourse, his reward was a suspension citing improper conduct.  What about those that harrassed and belittled him for twelve years, what was their punishment?   Nothing...of course.  Yet, if he were treated the same way to due his race, gender  or sexual orientation, he would have had recourse now wouldn't he have?

   How about Stephanie Jaggers and Faye Rex, once cocktail waitresses at the Standard Hotel in NYC?  Once gainfully employed by the Boom Boom Room (a club at the top of the hotel) and received pretty good evaluations, then they were fired from those positions once new management came in and stated they were "subpar" because they weren't "statuesque" or "svelte" to be working there. In other words, they weren't tall enough.  Can you imagine if they were fired because they were black and the hotel wanted an all white staff of cocktail waitresses?  These two women had to file a gender discrimination suit, since a height discrimination suit would have fallen flat here in New York.

   How about this case in Illinois a number of years ago:  Eberman vs the City of Chicago.    A 4'10" female detective who weighed under one hundred pounds brought a gender discrimination suit against the city due to a remark she received by her supervisor.  Apparently, her chief asked her "How can you be so short and do this job?"   The district court ruled in the city's favor, saying that the comments were gender neutral and added that Title VII does not protect against height discrimination.  Did you get that?  "Title VII Does Not Protect Against Height Discrimination!".   Title VII of the Civil Rights Act that is.

   Yes, there are some protections that Civil Rights Act does offer us shorter types.  Those protections would be applicable if an employer, such as a police department or fire department, instituted a height requiirement for employment.   Those height requirements would then have a "disparate impact" on other groups protected under Title VII; such as females, hispanics or asians (who aren't as tall as caucasian or black males) and would have to be removed unless proven to be absolutely necessary.  

  The Civil Rights Act also protects those that are disabled.   This may be another way for the shorter (or much shorter ) to get protection.  However, a disability has to be apparent or an employer has to regard you as having a disability.  At what height are you seen as being diasabled is an arbitrary thing.   One person may see being 5'3" and male as normal ( but short) and another may not.  The same goes if you were to file a suit claiiming such.

   So then, wouldn't it make sense to just pass a law banning all forms of height discrimination instead of leaving it as ambiguous as it is now (Seeing if we may fall under another protected class)?  Being harrassed and disrespected, denied promotions and even fired at our positions due to our short stature won't be covered under disparate impact challenges or disability claims.

   I wonder what Shelley Chinchilla's caseload would increase to of the thousands she probably already has?

  Gee, would five more cases a year drown you Ms Chinchilla?  Why do those other groups you protect not bother you but protecting the short and overweight from the same forms of discrimination make you complain about your caseload all of a sudden?   Let me guess, you belong to one of the other protected groups don't you?  How is it you work for the Equal Opportunity Commission but, so you don't have to take on a few more cases a year, you want to deny those of us without protection the equal opportunity you want for yourself.  Maybe you are in the wrong line of work then.

   Equal opportunity belongs to all of us and it is time for these legislators and employers to practice it!.