Originally from Dispute Resolution Journal

The grievance arbitration process is a means by which employees are able to challenge and obtain relief from discrimination based on race, religion, sex, ethnicity, age and handicap status.1 Anti-discrimination provisions in contracts give arbitrators the opportunity and means by which to apply federal law to protect employees from discrimination based on their minority status.

However, one type of discrimination that is not covered by federal or most state law is based on an employee’s weight. Employees perceived to be overweight or obese may be singled out for discrimination, not because of their inability to perform, but because of their physical appearance and possible concerns about their health. Overweight employees may also be singled out for harassment by co-workers or managers.

Given the absence of laws protecting employees from this type of arbitrary discrimination, it is important to determine whether the framework of grievance arbitration offers any protection to workers who are singled out because of their size. To address this matter, we reviewed all arbitration cases reported in the Bureau of National Affairs’ Labor Arbitration Reporter between 1945 and 2006 in which weight played a prominent role in the arbitrator’s determination. We identified 25 weight-related cases. In general, these cases fell into three groups. In the first group, the employers dismissed or refused to reinstate or recall employees to their former job based solely or partly on the belief that excessive weight or obesity interfered with the employees’ ability to perform their jobs successfully or safely. In the second group of cases, the employers dismissed overweight employees because of their failure to satisfy a company appearance or grooming requirement. The third group of cases involved employees who tried to obtain relief from harassment based on their weight or, alternatively, claimed that harassment at the workplace should mitigate discipline workers received for responding to abuse with their own acts of hostility.

While the total number of reported cases involving weight is small, they nevertheless allow us to evaluate the efficacy of the arbitration process to remedy weight-based discrimination. We looked at each type of case and in turn the principles that arbitrators used to deal with the dispute.