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 difficult situation involves the imposition of various restrict pounds compared to height conditions for males and you may females of exact same top. Unlike minimal peak conditions where setting various other requirements is known to bring about discrimination (look for § 621.2 above), specific process of law (select cases cited below) found you to definitely setting other restrict weight requirements for men and you will females of the same top does not lead to banned discrimination. In fact, the actual charts that are standard, and you will being relied on to ascertain peak/pounds equal in porportion to help you muscles size include other permissible constraints to have folk inside detection of one’s physiological differences between this new a few groups. A beneficial 5’7″ guy of medium prominence manage thus be permitted to weighing proportionally more than a great 5’7″ lady regarding average prominence for a passing fancy height/lbs chart. The difference inside the weight equal in porportion so you’re able to level from an effective 5’7″ woman off higher prominence would without a doubt feel shorter.
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 are nevertheless non-CDP. Any office from Legal counsel, Advice Division is always to thus be contacted to have assistance 
whenever costs situated on this procedure happen.
(e) Payment Conclusion
From inside the Fee Choice No. 70-140, CCH EEOC Decisions (1973) ¶ 6067, which alleged disparate procedures, dependence on a policy against hiring heavy individuals was discover so you’re able to become an excellent pretext to possess racial discrimination because just Black colored individuals were declined for being obese.
CP, a lady stewardess who was simply self-disciplined for being overweight, registered a fee alleging you to she had been discriminated up against given that regarding their intercourse in that boys were not susceptible to the new coverage
Into the Payment Decision Zero. 76-47, CCH Work Methods Publication ¶ 6635, where negative effect was alleged, the fresh new Payment determined that absent proof one Blacks just like the a course, according to a standard peak/weight chart, proportionally consider over other persons there is absolutely no basis for finishing that respondent’s failure to employ Black individuals who go beyond maximum pounds limitation comprises race discrimination.
During the Commission Decision No. 76-forty five, CCH A position Practices Guide ¶ 6634, where negative effect has also been so-called, the latest Commission unearthed that absent analytical evidence one to Hispanics once the a beneficial category weighing proportionally more than individuals away from most other national sources, Identity VII is not broken by the a good respondent’s incapacity to hire Hispanics which surpass the maximum pounds maximum.
