In response to increasing medical knowledge about the genetic source of obesity, Congress enacts and the President signs the “Obesity Rights Act” (ORA). The statute reads as follows:
Section: 1: Findings
The Congress hereby finds that the obese are subject to unreasonable and unfair discrimination in employment, given prejudice against and misunderstanding of, the condition of obesity. The Congress also recognizes that a desire to earn a profit may require a business to consider the physical attributes of certain members of its work force, and that this is a legitimate consideration.
The Congress also finds that obesity is not a legitimate tool for determining the capability of any person to contribute to an efficient workplace.
Section: 2: Discrimination
It is a violation of federal law for any employer to discriminate unreasonably against any person based on the person’s weight, except where weight is a bona-fide occupational requirement and where all reasonable attempts accommodate the person. have been made to
Section: 3: Definitions
“Employer” means any person, partnership, corporation or other business entity, or state or subunit of state government, that employs any person.
Section: 4: Relief
Any person may sue to enforce the provisions of this act in any federal court where venue is proper. A court may order damages, backpay, or other relief, as appropriate.
Section: 5 Regulations
(a) The U.S. Department of Labor is authorized to promulgate regulations to enforce these provisions. Violations of any valid regulation shall be considered violation of federal law.
Albert Adams, a junior auditor for the State of Baker, is fired for being obese. He sues the state and the state’s head auditor under the law, requesting back pay, damages, and an injunction against the head state auditor forbidding him from firing or demoting Adams. What constitutional defenses could Baker make to the lawsuit and the requests for relief?
Meanwhile the Department of Labor promulgates the following regulation:
Reg A: A “bona fide occupational requirement” is any requirement that, in the eyes of a reasonable employer, is reasonably necessary to prevent a loss of business or profit, taking into account reasonable customer preferences.
The Confederation believes that this regulation is far too lenient, and contravenes the intention of the statute. On the day the regulation is promulgated it sues the Department of Labor. Does it have standing?
Edwina Everett is a flight attendant for Fair Skies, based in Chicago, which is also the airline’s corporate headquarters. Edwina brings a lawsuit against Fair Skies, claiming a violation of Illinois employment law. Illinois employment law is all common law, and has evolved to the point where, according to one recent court decision, “any unreasonable discrimination which robs the people of the state of the talents of willing workers, is a violation of Illinois law.” Edwina sues Fair Skies in state court on the state law cause of action. What federal constitutional arguments would Fair Skies have in defense?
You may assume the following:
1. During its consideration of the ORA, Congress heard evidence that, as a psychological matter, people make assumptions about people’s self-control and discipline based in part on whether they are obese. Congress was also told that, in a public opinion poll, 67% of Americans said they would be uncomfortable working with an obese person.
2. Three individuals testified to Congress that they were fired from jobs, one from a job with New York state government, one with a large corporation and one with a small business, based solely on their obesity, despite achieving good performance reviews.
3. The CPOD was formed “to fight, in the legislatures, the courts, and in public opinion, all forms of discrimination and stereotypes about, and oppression of, obese persons.”