Can Your Employer Discriminate Against You Because of Your Height?

Many of us tend to obsess over our height. At work, we would hope, height doesn’t matter. But does the law protect people who are not tall, or for that matter, people who may be abnormally tall? Does being short (or shorter), or very tall, entitle a worker to some protection at work, and allow the employee to sue if there is harassment or discrimination based on height?  This can be a tough question to answer.

There is no law that explicitly protects height, and an employer may legally be able to only select, hire, or promote employees of a certain height. Despite any moral issues with it, an employer can generally favor taller people over shorter people (or vice versa) at work.  Height is not automatically a protected characteristic as is race, ethnic origin, disabilities, etc.

Height as an ADA Protected Disability?

The question becomes whether an employee’s height is an actual disability. If so, it is protected by the Americans With Disabilities Act (ADA).

The ADA doesn’t specifically define what a mental or physical impairment actually is, leaving room for an employee who feels discriminated against because of his or her height, to bring a lawsuit. In fact, the EEOC sued Starbucks, when the company wouldn’t allow a smaller Starbucks employee to work as a barista, while on a stool. That lawsuit resulted in a consent decree settlement.

The ADA protects workers if a disability “substantially limits one or more major life activities.” So, the question becomes whether someone’s height is outside a normal range, making it a disability, and whether height does in fact impair the ability to do life activities. Unfortunately, there is no set guideline as to what a “normal range” actually is or is not.

Often it may depend on whether the employee’s height is because of some other, underlying disease or condition that affects the employee’s height, as opposed to just being genetics-although if an employee’s genetic height puts him or her far outside of normal range, that too could be seen as a disability.

The Right to Accommodations

If you are a shorter or taller employee, and you feel that you have a disability that is covered by the ADA, you have a right to an accommodation. So long as you could do the job, as required, with the help of an accommodation, that accommodation has to be given to you by your employer.

This is often easy to show in height discrimination cases, as there are an untold number of modifications or equipment that can be used to assist for the lack of height.

The BFOQ Defense

All of this must be considered in conjunction with what is known as the Bona Fide Occupational Qualification defense, or BFOQ. This is where a condition or characteristic is a vital function to doing the job itself. It could be argued that certain jobs, which may require height, could select only employees of a certain height.

Are you being discriminated against because of an illness, condition or disability? Contact the San Jose employment attorneys at the Costanzo Law Firm today for help.

Sources:

texasemploymentlawupdate.com/wp-content/uploads/sites/852/2011/05/eeocstarbuckssett.pdf

businessmanagementdaily.com/35885/the-long-and-short-of-height-discrimination-under-the-ada