Employer weight restrictions - the New York Court of Appeals upholds ruling in favor of Delta Airlines in suit filed by flight attendants

Monthly Labor Review,  March, 1998  by Brinton E. Bohling

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The New York Court of Appeals affirmed an earlier ruling against 10 former flight attendants of Pan American Airlines following an agreement that Delta Airlines would purchase assets from Pan American. Roberta Brown and several other

flight attendants and pursers filed suit under a New York State law claiming discrimination after Delta failed to hire them because they did not meet the airline's height and weight restrictions.

The lawsuit was launched after Pan American's bankruptcy declaration in the summer of 1991. The airline entered into an agreement with Delta whereby the latter would acquire a substantial portion of Pan American's assets. Delta also agreed to hire approximately 6,000 Pan American employees, depending upon whether they met certain specific criteria, including seniority, language proficiency, the outcome of personal interviews, and satisfaction of the least restrictive of Delta and Pan American's small-to-medium weight standards referenced in Delta's height-weight charts.

The dispute arose as a result of Delta's failure to hire 10 former Pan American employees. During its rehiring process, Delta interviewed more than 2,600 Pan American flight attendants, made job offers to approximately 2,000, and ultimately hired approximately 1,800. The complainants-appellants were former Pan American flight attendants and pursers (hereafter referred to simply as attendants) with at least 14 years of experience at the time the airline ceased its operations. They filed individual administrative complaints against Delta with the State Division of Human Rights, alleging unlawful employment discrimination. Some complaints alleged discrimination on the basis of age, sex, a perceived disability such as weight, or a combination of these categories. Some also complained of discrimination on the basis of national origin, marital status, or race.

Following investigations, an administrative law judge from the New York State Division of Human Rights determined that the attendants should be reinstated with backpay and damages for mental anguish and humiliation. In particular, the judge found both no Federal preemption and discrimination of various kinds, including violations based on Delta's preemployment physical examinations. The judge concluded that there were no bona fide occupational qualifications relating to Delta's weight requirements and preemployment physical examinations and that Delta used unlawful preemployment inquiries into the applicants' age, disability, marital status, gender, or national origin. Later, an executive deputy commissioner of the Human Rights Division sustained the gender discrimination complaints and claims of unlawful preemployment inquiries concerning national origin or sex, but dismissed the remaining claims. The commissioner allowed the award of backpay, but significantly reduced the proposed damages for mental anguish and humiliation.

All parties then filed for a review. The appellate division of the New York State supreme court annulled the determinations insofar as they were adverse to Delta Airlines. Following the verdict, the attendants appealed to the New York Court of Appeals, the State's highest court. Judge Joseph W. Bellacosa prepared the opinion of the unanimous court. At the outset, the judge ruled on the threshold issue of preemption by the Federal Airline Deregulation Act. Delta Airlines had argued that the State discrimination claims were preempted by the 1978 Federal Act. On appeal, the attendants countered that their claims were not preempted, because Congress intended to restrict only State regulation of airline fares, routes, and services, not State regulation of employment practices. Judge Bellacosa cited a case heard in the Federal Second Circuit Court of Appeals that recently had applied the same provision.(9) The circuit court found no preemption by the Federal Airline Deregulation Act with respect to comparable age discrimination claims under the New York State Human Rights Law. The circuit court explained that "whether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency."(10) The New York Court of Appeals agreed.

Judge Bellacosa then addressed the claim that Delta's weight requirements constituted discrimination with regard to disability. The court found that the attendants failed to establish that they were members of a medically impaired (and therefore protected) class defined under the New York Human Rights Law. Nothing in the record supports the proposition that the appellants suffer from a legally defined or cognizable "medical impairment"(11) that restricts their "normal bodily function"(12) by merely being overweight. In support of their discrimination claim, the attendants offered the case of State Div. of Human Rights v. Xerox Corp.(13) In this case, a discrimination claim arose out of the allegation that Xerox refused to hire someone be cause she was obese. The examining physician determined that the complainant, who was 5 feet, 6 inches, and weighed 249 pounds, suffered from a condition of "gross obesity."(14) In Xerox, the court held that the commissioner could find that the complainant's obese condition itself constituted impairment and, therefore, a disability within the scope of the statute. However, Judge Bellacosa and the other justices on the court of appeals found the Xerox case to be legally quite distinct from the flight attendants' case. The attendants offered no evidence to establish that they were medically incapable of meeting Delta's weight requirements due to some cognizable medical condition. This element was crucial in Xerox, but absent in the attendants' case.