February 2012 Bar Bulletin
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February 2012 Bar Bulletin

Height Requirements May Not Pass Muster

By Karen Sutherland

 

Is it illegal to discriminate in employment on the basis of height? Studies have shown that height is positively related to income, after controlling for sex, age and weight.1 However, height itself (or lack thereof) is not a protected class under Washington or federal anti-discrimination laws.

In keeping with this month's "Brevity" theme, we could end this article right here, but since there are circumstances under which height matters, we will forge ahead and explore the role height can play in a discrimination analysis.

Prior to the passage of the Americans with Disabilities Amendments Act,2 the EEOC issued guidance on whether a lack of — or even too much — height was a disability.3 To summarize, it stated normal deviations in height that are not the result of a physiological disorder are not impairments.4 At extremes, however, such deviations may constitute impairments and some individuals may have underlying physical disorders that affect their height.

For example, a 4-foot-10 woman who was denied employment as an automotive production worker because the employer thought she was too small to do the work does not have an impairment.5 Her height was below the norm, but not so extreme as to constitute an impairment and was not the result of a defect, disorder or other physical abnormality.

On the other hand, a 4-foot-5 man with achondroplastic dwarfism does have an impairment because his stature results from an underlying disorder that is an impairment.6

Height requirements can also violate anti-discrimination laws if they have a disparate impact on members of a protected class. As noted in the EEOC Compliance Manual Section 15: Race and Color Discrimination,7 Title VII's prohibition of race discrimination generally encompasses employment discrimination based on a person's physical characteristics associated with race, such as a person's color, hair, facial features, height and weight.

Standards for height sometimes are challenged as having an unlawful adverse impact. "For example, a requirement that employees be at least six feet tall might have an adverse impact on Asian Americans due to average height and weight differences, and thus such a requirement would need to be job-related and consistent with business necessity."8


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