Can i sue a cruise line for discrimination ?
November 7, 2008 7:05 PM Subscribe
Can i sue a cruise line for discrimination ? They said i'm too fat to be hired. I'm 5'10" 240lb.
if this is the us, it depends on which state you're in—weight discrimination isn't illegal in all but a handful of states. what job were you trying to get hired for?
posted by lia at 7:13 PM on November 7, 2008
posted by lia at 7:13 PM on November 7, 2008
If you are serious about pursuing a lawsuit, you need to talk to an attorney.
That said, I wouldn't be surprised if a certain degree of physical fitness is a legitimate requirement for a crew member on a ship.
posted by indyz at 7:17 PM on November 7, 2008
That said, I wouldn't be surprised if a certain degree of physical fitness is a legitimate requirement for a crew member on a ship.
posted by indyz at 7:17 PM on November 7, 2008
I'm not a lawyer, but if they actually told you that you're too fat, as opposed to, y'know, making up some other reason for not hiring you, it seems very unlikely that you'd be able to sue them successfully.
posted by box at 7:22 PM on November 7, 2008
posted by box at 7:22 PM on November 7, 2008
I wouldn't be surprised if a certain degree of physical fitness is a legitimate requirement for a crew member on a ship.
I believe that's the case in the airline industry. Of course it depends what job you were applying for and what they actually said to you.
posted by ob at 7:28 PM on November 7, 2008
I believe that's the case in the airline industry. Of course it depends what job you were applying for and what they actually said to you.
posted by ob at 7:28 PM on November 7, 2008
I think your chances of prevailing are negligible. I think your chances of being stuck paying their legal bills in addition to your own are substantial.
posted by Class Goat at 7:34 PM on November 7, 2008
posted by Class Goat at 7:34 PM on November 7, 2008
That said, I wouldn't be surprised if a certain degree of physical fitness is a legitimate requirement for a crew member on a ship.
Agreed. Often cruise ship staff have to help with emergency procedures, and I can imagine a rotund, out of shape crew member could have difficulty in emergency situations.
posted by jayder at 7:37 PM on November 7, 2008
Agreed. Often cruise ship staff have to help with emergency procedures, and I can imagine a rotund, out of shape crew member could have difficulty in emergency situations.
posted by jayder at 7:37 PM on November 7, 2008
Being morbidly obese has been judged to be a disability protected under the ADA.
"The ADA states that morbid obesity, which is defined as weighing more than 100 percent over the norm, is considered a disability if it substantially limits, has limited, or is viewed as substantially limiting a major life activity. These activities include walking, sitting, lifting, breathing, and standing -- any activity that the average person can perform with little or no difficulty. The ADA prohibits an employer from failing to hire disabled obese individuals if they are qualified to perform the job, with or without reasonable accommodation. Qualified means having the requisite skills, experience, education, and other job requirements."
A BMI of 40 is generally considered the definition of being morbidly obese; I calculate yours to be 34.6 so you may not qualify. Given the job requirements (which you don't specify), assuming they didn't arbitrarily exclude overweight people, they may also have a valid concern that you were unable to perform the job even with reasonable accomodation.
It may be worth talking to a lawyer if you're really determined, but it doesn't, on the face of it, look like you'd have great odds of winning.
posted by ArkhanJG at 7:42 PM on November 7, 2008 [1 favorite]
"The ADA states that morbid obesity, which is defined as weighing more than 100 percent over the norm, is considered a disability if it substantially limits, has limited, or is viewed as substantially limiting a major life activity. These activities include walking, sitting, lifting, breathing, and standing -- any activity that the average person can perform with little or no difficulty. The ADA prohibits an employer from failing to hire disabled obese individuals if they are qualified to perform the job, with or without reasonable accommodation. Qualified means having the requisite skills, experience, education, and other job requirements."
A BMI of 40 is generally considered the definition of being morbidly obese; I calculate yours to be 34.6 so you may not qualify. Given the job requirements (which you don't specify), assuming they didn't arbitrarily exclude overweight people, they may also have a valid concern that you were unable to perform the job even with reasonable accomodation.
It may be worth talking to a lawyer if you're really determined, but it doesn't, on the face of it, look like you'd have great odds of winning.
posted by ArkhanJG at 7:42 PM on November 7, 2008 [1 favorite]
Note, in both cases from the link above, a fear that an obese person - otherwise capable of doing the job - would not be able to move fast enough in an emergency situation was judged to be to discriminatory, and the company lost.
posted by ArkhanJG at 7:45 PM on November 7, 2008
posted by ArkhanJG at 7:45 PM on November 7, 2008
(IANAL) The two questions that this will boil down to are:
1. Is "being overweight" a protected class in the relevant state you are in or under federal law? There is some case law to suggest that being overweight (even if you have no medical condition) can be considered a "disability", so you might be able to clear this hurdle (but I'm not a lawyer, and my discrimination law experience is very limited in any event, consult a lawyer)
2. Is being the size they want you to be a bona-fide occupational qualification? Note that this could possibly be distinct from you being "in shape" (since even overweight folks can have good cardiovascular / strength / etc), although I wouldn't count on a court to make that distinction at the trial level.
One thing you can be (almost) sure of -- this is not ground that employers want to give. Which means that if you were to win at trial you would be on the hook for the appellate process to the bitter end, basically. It's not going to be a quick trip to small claims and a nice payday... it would be an expensive, time-consuming, and lengthy endeavor, and if the job involves even the slightest hint of physical labor, you're probably going to lose spectacularly. Of course, if strides in civil rights were easy, we wouldn't have any left to make.
Take heart, though, this is a budding area of law, and there may be attorneys out there willing to take a case like this pro bono just to get it into the court room, since it's probably not very often that they can get right to the issue without having to first prove that it IS weight discrimination.
These folks may be able to help you find an attorney who specializes.
posted by toomuchpete at 7:48 PM on November 7, 2008 [1 favorite]
1. Is "being overweight" a protected class in the relevant state you are in or under federal law? There is some case law to suggest that being overweight (even if you have no medical condition) can be considered a "disability", so you might be able to clear this hurdle (but I'm not a lawyer, and my discrimination law experience is very limited in any event, consult a lawyer)
2. Is being the size they want you to be a bona-fide occupational qualification? Note that this could possibly be distinct from you being "in shape" (since even overweight folks can have good cardiovascular / strength / etc), although I wouldn't count on a court to make that distinction at the trial level.
One thing you can be (almost) sure of -- this is not ground that employers want to give. Which means that if you were to win at trial you would be on the hook for the appellate process to the bitter end, basically. It's not going to be a quick trip to small claims and a nice payday... it would be an expensive, time-consuming, and lengthy endeavor, and if the job involves even the slightest hint of physical labor, you're probably going to lose spectacularly. Of course, if strides in civil rights were easy, we wouldn't have any left to make.
Take heart, though, this is a budding area of law, and there may be attorneys out there willing to take a case like this pro bono just to get it into the court room, since it's probably not very often that they can get right to the issue without having to first prove that it IS weight discrimination.
These folks may be able to help you find an attorney who specializes.
posted by toomuchpete at 7:48 PM on November 7, 2008 [1 favorite]
ArkhanJG is not really correct. When the ADA fist came out, morbid obesity was considered a protected disability by some district courts. But in the last 10 years, pretty much across the board, it has been extremely difficult for obese people, even morbidly obese people, to be considered disabled and entitled to ADA protections. This may change with the ADA amendment passed this year - we have to wait and see.
posted by miss meg at 8:22 PM on November 7, 2008
posted by miss meg at 8:22 PM on November 7, 2008
The thing about ADA is that accommodations have to be made when reasonable. If the job inherently requires a certain physical ability, it doesn't mean that those who are incapable of doing the job for physical reasons are being discriminated against. IANAL.
posted by fructose at 8:29 PM on November 7, 2008
posted by fructose at 8:29 PM on November 7, 2008
Please forgive me if I'm missing something, but I was under the assumption that most cruise lines are not registered in the United States, so I don't believe the ADA would apply.
posted by Mimzy at 8:36 PM on November 7, 2008 [1 favorite]
posted by Mimzy at 8:36 PM on November 7, 2008 [1 favorite]
I would also wonder if the position the OP was applying for was somehow being considered as a "performer," in the same way that the waitresses at Hooters are "performers" - and can therefore be selected on physical appearance.
posted by cabingirl at 8:49 PM on November 7, 2008
posted by cabingirl at 8:49 PM on November 7, 2008
Can't touch them. They don't have to hire anyone they don't want to because they will be at sea and anyone they consider at-risk of medical problems (diabetes, pre-diabetic, and yes, obese). Frankly, you have to be rather agile and in great physical health to operate well in the cramped confines and personal pressure cooker of a cruise ship. I originally thought this was unfair when my boyfriend started working on a cruise ship, but quickly came to understand their logic: crew need to be ready to assist guests at all times, in all circumstances, and so there are a very stringent set of requirements about physical health.
Also, most ships sail under foreign flags (e.g. are registered in countries other than the US) AND operate primarily in foreign waters, the Americans with Disabilities Act doesn't apply to them. Even if they operated solely in US waters and were registered in the US, the ADA is not applicable to sea vessels.
Also, most ships have very limited handicapped assistance in the crew-only areas. I'm not saying that being overweight makes you handicapped, but there is generally a very limited range of motion in the crew-only areas. Having stayed for weeks/months in a few myself, as a skinny short lady I often feel a little oversized. I cannot, full stop, cannot imagine getting into one of the crew showers as a larger person- they are too small to be realistically imagined. Make an isosceles triangle with your arms - that's the shower's "footprint" in my boyfriend's last cabin.
And imagine this, as your final thought exercise- my boyfriend's last cabin, including the bathroom, was 120 sq ft. Depending on your status, they fit up to THREE PEOPLE in those cabins, typically two.
posted by arnicae at 9:18 PM on November 7, 2008 [6 favorites]
Also, most ships sail under foreign flags (e.g. are registered in countries other than the US) AND operate primarily in foreign waters, the Americans with Disabilities Act doesn't apply to them. Even if they operated solely in US waters and were registered in the US, the ADA is not applicable to sea vessels.
Also, most ships have very limited handicapped assistance in the crew-only areas. I'm not saying that being overweight makes you handicapped, but there is generally a very limited range of motion in the crew-only areas. Having stayed for weeks/months in a few myself, as a skinny short lady I often feel a little oversized. I cannot, full stop, cannot imagine getting into one of the crew showers as a larger person- they are too small to be realistically imagined. Make an isosceles triangle with your arms - that's the shower's "footprint" in my boyfriend's last cabin.
And imagine this, as your final thought exercise- my boyfriend's last cabin, including the bathroom, was 120 sq ft. Depending on your status, they fit up to THREE PEOPLE in those cabins, typically two.
posted by arnicae at 9:18 PM on November 7, 2008 [6 favorites]
Oh, and here are industry standards for physical health- a few cruise lines have looser standards, maybe Holland America, but I know that Disney and Royal Carribean conform to the tighter standards in the PDF I linked to.
It isn't about appearance (mostly), it is about safety.
If you're not a twenty-something, perhaps you can take solace in the fact that the boats I've been on, in the crew quarters at least, were reminiscent of my college dorm experience- the vast majority of the employees between 18-24, with a smattering of older employees. At night, it reminded me of a frat party, with smoking in the hallways, dancing and loud conversations and impromptu stairwell rugby matches going on until the very small hours of the morning.
posted by arnicae at 9:26 PM on November 7, 2008
It isn't about appearance (mostly), it is about safety.
If you're not a twenty-something, perhaps you can take solace in the fact that the boats I've been on, in the crew quarters at least, were reminiscent of my college dorm experience- the vast majority of the employees between 18-24, with a smattering of older employees. At night, it reminded me of a frat party, with smoking in the hallways, dancing and loud conversations and impromptu stairwell rugby matches going on until the very small hours of the morning.
posted by arnicae at 9:26 PM on November 7, 2008
I'm not a lawyer and this isn't legal advice, but I think Mimzy and arnicae are probably correct about the ADA not being applicable.
The Supreme Court has held that the ADA does apply to foreign-flag cruise ships in a very limited capacity. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005). However, the application of the ADA does not extend to the ship's "internal affairs," which includes, in the Court's words, the relationship between a vessel and its crew. Although the case was about applying the ADA to disabled cruise ship passengers, it seems probable from dictum that the ADA does not apply to the crew of foreign-flag cruise ships.
I don't know enough about labor/maritime/disability law to say if the vessel/crew relationship is separate from the initial hiring decision, though. If you're serious about this, talk to a competent lawyer with experience in these areas.
posted by jedicus at 9:32 PM on November 7, 2008
The Supreme Court has held that the ADA does apply to foreign-flag cruise ships in a very limited capacity. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005). However, the application of the ADA does not extend to the ship's "internal affairs," which includes, in the Court's words, the relationship between a vessel and its crew. Although the case was about applying the ADA to disabled cruise ship passengers, it seems probable from dictum that the ADA does not apply to the crew of foreign-flag cruise ships.
I don't know enough about labor/maritime/disability law to say if the vessel/crew relationship is separate from the initial hiring decision, though. If you're serious about this, talk to a competent lawyer with experience in these areas.
posted by jedicus at 9:32 PM on November 7, 2008
There's no way to tell, based only on that height/weight, whether or not he's physically capable of doing the job. A 5'10" bodybuilder might easily weigh 240 lbs as well. You would expect there to be some other physical requirements listed for the job position other than BMI. Worst of all is if they posted the position, didn't say anything about physical requirements, and made a snap judgment about his qualifications just by looking at him.
Nobody likes being written off because of somebody's unfounded assumptions and prejudices, so it might be worth talking to a lawyer if this bothers you on principle and you have a lot of money to spare -- though as a practical matter it doesn't sound worth litigating to me.
posted by Hildago at 9:47 PM on November 7, 2008
Nobody likes being written off because of somebody's unfounded assumptions and prejudices, so it might be worth talking to a lawyer if this bothers you on principle and you have a lot of money to spare -- though as a practical matter it doesn't sound worth litigating to me.
posted by Hildago at 9:47 PM on November 7, 2008
You might want to contact Sondra Solovay. Author of Tipping the Scales of Justice: Fighting Weight Based Discrimination by Sondra Solovay (Paperback - Jan 2000).
posted by ClaudiaCenter at 11:11 PM on November 7, 2008
posted by ClaudiaCenter at 11:11 PM on November 7, 2008
In the U.S discrimination law works on the basis of a "protected class". And fatness isn't a protected class, and as other people pointed out, being 240 pounds at 5'10" isn't enough to really be a disability.
posted by delmoi at 11:25 PM on November 7, 2008
posted by delmoi at 11:25 PM on November 7, 2008
"Also, this isn't discrimination. Please don't toss that word around. It has a very specific legal meaning."
It most certainly is discrimination. Note that when laws are passed and court decisions of this sort are rendered they don't say "Discrimination is illegal. X, Y, and Z are discrimination!" They say "discrimination on the basis of X, Y , and Z are illegal" the only logical conclusion from this and the constant mentions of "illegal discrimination" is that a) discrimination on other bases is okay, and b) "discrimination" is not really the term of art you seem to think it is.
Now, our society has attached a number of connotations to the word but let's not pretend like those connotations been enshrined into law, because they haven't.
In so far as a lawsuit goes, I don't believe you can show standing
With all due respect... you have lost your damn mind. If someone not hired for a job can't show standing to sue over that hiring decision, standing doesn't exist. Further, countless hundreds of law suits have been successfully filed and carried through to adjudication on the basis of a hiring decision, and that basis alone... somehow I doubt that the defense attorneys involved just forgot about standing.
You seem to suggest that there needs to be some harm beyond simply not being hired. I'm not sure where you'd have gotten that idea from, but I cannot even imagine the legal fictions courts would have to erect or hoops that the courts would have to jump through to handle cases of sex or race discrimination if the law were as you suggest it is... after all, being called fat is far more "damaging" than being told that you're a woman, right? So if this doesn't give rise to standing, neither should being told "We don't hire women for jobs like these." But, somehow, I think that the woman in that situation would have her day in court without being bothered by standing issues.
This is probably the worst piece of faux-legal advice I've read on AskMe in a long time. Do you actually have any sort of legal training or experience you're relying on here? Or maybe some citations to cases or statutes to support either of the bizarre things you've claimed? I'd love to know where answers like this come from.
posted by toomuchpete at 7:03 AM on November 8, 2008
It most certainly is discrimination. Note that when laws are passed and court decisions of this sort are rendered they don't say "Discrimination is illegal. X, Y, and Z are discrimination!" They say "discrimination on the basis of X, Y , and Z are illegal" the only logical conclusion from this and the constant mentions of "illegal discrimination" is that a) discrimination on other bases is okay, and b) "discrimination" is not really the term of art you seem to think it is.
Now, our society has attached a number of connotations to the word but let's not pretend like those connotations been enshrined into law, because they haven't.
In so far as a lawsuit goes, I don't believe you can show standing
With all due respect... you have lost your damn mind. If someone not hired for a job can't show standing to sue over that hiring decision, standing doesn't exist. Further, countless hundreds of law suits have been successfully filed and carried through to adjudication on the basis of a hiring decision, and that basis alone... somehow I doubt that the defense attorneys involved just forgot about standing.
You seem to suggest that there needs to be some harm beyond simply not being hired. I'm not sure where you'd have gotten that idea from, but I cannot even imagine the legal fictions courts would have to erect or hoops that the courts would have to jump through to handle cases of sex or race discrimination if the law were as you suggest it is... after all, being called fat is far more "damaging" than being told that you're a woman, right? So if this doesn't give rise to standing, neither should being told "We don't hire women for jobs like these." But, somehow, I think that the woman in that situation would have her day in court without being bothered by standing issues.
This is probably the worst piece of faux-legal advice I've read on AskMe in a long time. Do you actually have any sort of legal training or experience you're relying on here? Or maybe some citations to cases or statutes to support either of the bizarre things you've claimed? I'd love to know where answers like this come from.
posted by toomuchpete at 7:03 AM on November 8, 2008
Mod note: a few comments removed - take shirty talk to MetaTalk and keep your insults about the OP to yourselrf
posted by jessamyn (staff) at 10:42 AM on November 8, 2008
posted by jessamyn (staff) at 10:42 AM on November 8, 2008
Response by poster: First I would like to thank all of you who made comment's, even the lady who said just loose some weight.
That being said let me mention a few of these facts. I am an independent contractor on these ships. A musician in a lunge act. The company use's some BMI scale to determine if your fit or not in addition to a compile medical exam. You have to have a full and I mean full examination. I passed and have been passing for the last 15 years. This is a new thing they just started ( Carnival cruises )
Now there are people twice my size working there in front of the house positions and supposedly they were grand fathered in before the rule went into effect. Also I was already working on one of the ships when I was notified that I would not be rehired until I lost 20 lbs.
Thank you all again for your help in this.
posted by scottbass at 4:03 PM on November 8, 2008
That being said let me mention a few of these facts. I am an independent contractor on these ships. A musician in a lunge act. The company use's some BMI scale to determine if your fit or not in addition to a compile medical exam. You have to have a full and I mean full examination. I passed and have been passing for the last 15 years. This is a new thing they just started ( Carnival cruises )
Now there are people twice my size working there in front of the house positions and supposedly they were grand fathered in before the rule went into effect. Also I was already working on one of the ships when I was notified that I would not be rehired until I lost 20 lbs.
Thank you all again for your help in this.
posted by scottbass at 4:03 PM on November 8, 2008
MeFi mail me if any of the interactions occurred in California. There are some interesting state law claims that might apply.
posted by ClaudiaCenter at 10:04 PM on November 8, 2008
posted by ClaudiaCenter at 10:04 PM on November 8, 2008
This thread is closed to new comments.
posted by amanda at 7:13 PM on November 7, 2008 [3 favorites]