Wanting to bolster attendance for his newly acquired and struggling Marfa baseball team, the Giants, Bick Benedict sent his scout team looking for someone who was extremely short. Bick settled on Jett Rink. Anticipating that Major League Baseball would reject Rink, Bick got the contract approved late on a Friday. When Jett stepped up to the plate to lead off in the second game with the St. Louis Browns the following Sunday, the umpire refused to allow Jett to bat until Bick showed the umpire Jett’s signed contract and the official team roster. Despite strict orders to crouch low and not swing, Rink stood up, but the strike zone was still considerably smaller. He was an easy walk. Two days later, the AL President voided Jett’s contract and officially banned those under a certain height from being able to play in the AL. Can Major League Baseball discriminate against short people? Can anyone?

Discriminate Against SHRIMPs?

Yes. In fact the story above is real. Although there are some who passionately contend that SHRIMPs (Severely Height-Restricted Individuals of the Male Persuasion) are an oppressed social group entitled to special protections or compensatory benefits, refusing to hire vertically challenged job applicants is generally not illegal in Texas. Not surprisingly, it is in San Francisco and Santa Cruz California, Michigan and, possibly the District of Columbia. I say generally because there is an argument that some kinds of shortness are protected by the ADA.

Vertically Challenged?

While the Americans with Disability Act apparently does recognize dwarfism as a disease I found no readily available, developed case law in this area. Perhaps the big question is who gets recognized as suffering discrimination, and who is just unfortunate. America’s Equal Employment Opportunity Commission, which oversees the anti-discrimination laws, now boasts a man who has given the subject some thought – Paul Steven Miller, who is 4’5″ tall. He is an achondroplastic dwarf. While his dwarfism is regarded as a disability and is legally protected against discrimination, Mr. Miller opposes extending such protections to the “normally” short– men like America’s labor secretary, Robert Reich, who is 4’10” and hears no end of it. Why protect Mr. Miller but not Mr. Reich? Because, Mr. Miller says, one cannot protect everybody. “It would be totally unwieldy to let everybody in.

Unlike discrimination on grounds of gender, age and race, heightism is not acknowledged as a problem. And yet when academics do the numbers, short people always come up … short. One study suggests that discrimination against the short is worse than sex and race discrimination. Yet, Randy Newman who once sang, “Short People” and suggested they “got no reason to live” would undoubtedly be in the minority today.

Tilting the Scales in Your Favor

As the saying goes, “you can sue someone for just about anything.” While there is supportable logic for Major League Baseball to have a height limitation on its players, there may not be such easily identifiable logic in other jobs. Moreover, the breadth of the Americans with Disabilities Act that might include “dwarfism” and its related diseases coupled with the imagination of trial lawyers might make a viable claim. There would appear to be a discernible difference between “being born that way” and choosing a behavior that creates a health risk like last month’s blog. If you have any doubts, I am sure that our Looper Reed employment experts Ruth Ann Daniels and Michael Kelsheimer will have sound advice. In the meantime, there does not have to be an explanation given to any job applicant who is not selected. A simple, no thank you will suffice.

Be aware, that like organizations that weigh in on obese people, there are organizations that support those who come up short like the National Organization of Short Statured Adults, Inc. whose non-profit 501(c)(4) combats “Heightism” – a prejudiced attitude about human height that often results in discrimination. It is based on the belief that short stature is an inferior trait and therefore undesirable.