PAUL PLIZKA, Complainant



On April 10, 1975 the examiner issued her recommended decision in the above entitled matter. Timely exceptions were filed on behalf of both parties and oral argument was had before the Commission on July 29, 1975.

Based upon the record herein the Commission of the Department makes the following:


This is a handicap discrimination case involving an individual with a history of obesity.

On three occasions in 1973 Complainant was refused employment because of his overweight condition. The Respondent employer utilized a height-weight chart as a basis for its decisions not to hire complainant. Complainant was in all other respects suitable for employment and would have been hired but for his weight.

We believe that the condition of obesity of the Complainant in this case does not constitute a handicap within the meaning of Wis. Stat. 111.32 (5) (a). It is uncontroverted that Complainant's weight was totally within his control. There was no indication of a glandular or other physiological disorder.

The Wisconsin Supreme Court in Chicago, Milwaukee St. Paul and Pacific R. R. Co. vs. DILHR, 62 Wis. 2d 392, 215 N.W.2d 433 (1974)  adopted a rather broad approach to the definition of handicap. The Court relying on Websters Third New International Dictionary defined a handicap as "a disadvantage that makes achievement unusually difficult; esp.: a physical disability that limits the capacity to work." Id at p. 398. Applying that definition to the facts of the Chicago case the Supreme Court concluded that this Department was correct in concluding that a history of asthma was a handicap within the meaning of the Fair Employment Act.

While we could find room within the four corners of the court's decision for obesity, we believe such a decision would be contrary to the legislative intent underlying the addition of handicapped persons to the classes protected by the Fair Employment Act.

The physical condition of Complainant was clearly and totally within his self-control. He had, during the course of seeking employment lost 24 pounds. On other occasions he had lost substantial amounts of weight. The overweight condition of Complainant cannot be considered a handicap.

This decision should be narrowly interpreted according to the facts of this particular case. We are not ruling out all self-controlled physical conditions from within the protection of the handicap provisions of the Fair Employment Act.

The above decision negates the necessity of our ruling on the issues raised by way of Complainant's exceptions.

Dated and mailed August 19, 1975

/s/ John C. Zinos, Chairman

/s/ William Johnson, Commissioner

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