Probative Weight: Rethinking Evidentiary Standards in Title VII Sex Discrimination Cases

Introduction

Various forms of prejudice and bias plague the labor market in the United States, skewing opportunities for qualified people to attain the jobs they desire. Title VII was designed to eliminate some of those barriers by creating a law that prohibits employers from discriminating against applicants based on race, color, religion, sex, or national origin. In 1964, when this legislation was passed, discrimination against protected classes was unconcealed. Since then, forms of employment discrimination have transformed into subvert–even unconsciousprejudice and bias, often clothed in legal forms of subjectivity in hiring. When addressing sex discrimination, we must therefore acknowledge its more subtle and insidious forms and take a searching look at what it means to discriminate against an applicant based on sex. For women, sex discrimination occurs when an employer makes a negative employment decision based on stereotypes of an ideal woman’s role, place, personality, or figure. In this Article, I will argue that statistical and historical data linking illegal gender stereotyping to weight-based employment discrimination should give rise to an inference of sex discrimination when an employment decision is based on a woman’s weight. Employers currently have discretion to hire, promote, or fire an employee based on an unprotected trait, including weight. In a world where weight discrimination is obvious in many facets of life, it is no surprise that legal scholars have explored adjusting or expanding our current notions of antidiscrimination law in order to address weight discrimination through the law. Specifically, advocates have focused on employment discrimination as a starting place for change. Generally, scholars and advocates have called for expansions of current federal anti-discrimination laws such as the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, or implementation of state and local appearance and weight discrimination protections. For the most part, scholars have disfavored connecting weight-based discrimination to a protected class (such as sex) in federal anti-discrimination claims, deeming this approach less useful and more difficult to prove than other strategies. I will argue, however, that since women statistically face a significantly disproportionate amount of weight discrimination in employment, and since such empirical data generally stems from historical views of an ideal woman’s figure, evidence of weight discrimination should have probative influence in a Title VII sex discrimination claim.

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