In Texas, Weight and Physical Appearance are NOT Protected Characteristics under Chapter 21 of the Texas Labor Code

Chapter 21 of the Texas Labor Code prohibits an employer from refusing to hire an individual, discharging an individual, or discriminating in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment on the basis of race, color, disability, religion, sex, national origin, or age. However, you will notice that weight or physical appearance is not included in the list of protected characteristics. Consequently, an employer cannot be held liable under anti-discrimination statutes for adverse action or harassment an employee has suffered based on his weight alone.

To establish a prima facie case of hostile work environment in Texas, an employee must demonstrate: (1) membership in a protected group; (2) subjection to unwelcome harassment; (3) harassment based on a protected characteristic; (4) harassment that affected a term, condition, or privilege of employment; and (5) employer knowledge of the harassment with failure to take prompt remedial action. However, not all workplace conduct constitutes actionable harassment. Texas state and federal courts are clear that simple teasing, offhand comments, and isolated incidents–unless extremely serious)–will not amount to discriminatory changes in the terms and conditions of employment. The complained-of conduct must be "severe or pervasive enough" that it "altered the conditions of employment and created an abusive work environment." Donaldson v. Tex. Dep't of Aging & Disability Servs., 495 S.W.3d 421 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

In order for an employee to have a hostile work environment claim against his employer based on his weight, the employee has to establish that his weight constitutes a disability under Chapter 21, i.e. an employee must demonstrate that their weight qualifies as a "physical impairment" that "substantially limits one or more major life activities," or that they are "regarded as having such an impairment." And in cases of morbid obesity, it only qualifies as an impairment only when caused by a physiological disorder or condition. Morbid obesity alone is not a protected characteristic under Chapter 21.

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