Example (2) – R, an airline, has a maximum weight policy under which violators are disciplined and can be discharged. The weight policy applies only to passenger service representatives and stewardesses who are all female. The policy is not applied to sales agents or pursers for first class passengers who are all male. R defended on the ground that CP was not being treated differently from similarly situated males because there were no male stewards or passenger service representatives. Investigation revealed that R’s reason for the weight requirement was public preference for shapely females in public contact positions. Even though the job categories are different in this case, since the jobs are public contact jobs and R is concerned with public preference in such jobs, the males and females are similarly situated. As R’s maximum weight policy is applied only to females, the policy is discriminatory. (Where other than public contact positions are involved, the issue is non-CDP, and the Office of Legal Counsel, Guidance Division should be contacted.)
A more difficult state involves the imposition of different limit lbs equal in porportion so you’re able to height criteria for men and you may lady of your own same top. Unlike lowest peak conditions in which mode additional requirements has been found to effect a result of discrimination (pick § 621.2 significantly more than), particular process of law (select instances cited below) found you to definitely mode various other limitation weight criteria for males and you will females of the identical peak doesn’t trigger blocked discrimination. In reality, ab muscles maps which happen to be important, and you will that are made use of to establish top/weight in proportion so you can muscles size contain some other permissible constraints getting group inside recognition of one’s physiological differences between new a few communities. A beneficial 5’7″ man out of average stature would thus be allowed to consider proportionally more than a great 5’7″ woman off typical stature for a passing fancy height/weight graph. The real difference within the weight compared in order to peak away from good 5’7″ lady from large prominence do of course end up being faster.
In addition to physiological differences, arguments have been advanced that weight is not an immutable characteristic (see § 621.5(a)) and that policies based on personal appearance (see § 619, Grooming Standards) do not result in prohibited sex discrimination. (See Jarrell and Gerdom which are cited below.) Therefore, these courts have concluded that, as long as the different height/weight standards are not unreasonable in terms of medical considerations and ability to comply, are consistent with accepted medical notions of good health, and exemptions are available for those medically unable to comply, the use of different standards does not result in prohibited discrimination.
This dilemma need continue to be low-CDP. The office from Legal services, Information Office will be for this reason become called to possess advice whenever charges situated with this material occur.
(e) Percentage Choices
In Payment Decision No. 70-140, CCH EEOC Decisions (1973) ¶ 6067, and therefore alleged disparate treatment, reliance on an insurance plan up against hiring fat individuals was discovered to help you getting a pretext for racial discrimination just like the only Black colored applicants was basically refuted for being obese.
CP, a lady stewardess who had been disciplined for being obese, registered a fee alleging you to she was being discriminated facing once the out of their gender where men weren’t susceptible to the new coverage
From inside the Percentage Decision Zero. 76-47, CCH A job Methods Guide ¶ 6635, where bad impression try alleged, brand new Payment figured absent proof you to definitely Blacks once the a class, based on a standard top/lbs chart, proportionally consider more other individuals there is absolutely no cause for concluding your respondent’s inability to employ Black colored persons whom meet or exceed the maximum lbs restriction comprises race discrimination.
In the Commission Decision No. 76-45, CCH A position Practices Guide ¶ 6634, where adverse impact was also so-called, the fresh Commission learned that absent mathematical evidence one to Hispanics because the a good category consider proportionally more than people regarding most other federal sources, Term VII isn’t violated from the an effective respondent’s incapacity to employ Hispanics just who surpass maximum pounds limit.