Law: Don't slight overweight employees

Wilford H. Stone, Lynch Dallas Attorneys at Law. (Courtesy photo)
Wilford H. Stone, Lynch Dallas Attorneys at Law. (Courtesy photo)

Around 35 percent of U.S. adults are classified as obese. Medical costs for obese employees are nearly 80 percent higher than for non-obese workers, and according to one study obese workers are twice as likely to be absent from work.

Those numbers are climbing, forcing courts and agencies over the next several years to address how overweight and obese people are treated in the workplace.

What should an employer do?

Earlier this year, a Texas hospital created a furor when it stated it would no longer hire anyone with a body mass index (BMI) of 35 or higher. (A BMI of 15 to 25 is considered normal). To put this in perspective, that’s 210 pounds for a 5-foot, 5-inch individual.

The hospital admitted that one of its reasons for the policy was that patients expect some sort of professional appearance from their doctors and nurses. That makes some sense as a health care provider should be, well, healthy.

Customer preference is important, but is it legal to discriminate against overweight people?

Many people likely engage in such discrimination as our society is obsessed with appearances. In fact, studies show many people believe others are overweight because they eat too much, do not exercise, lack willpower or are just plain lazy. Unlike one’s race, national origin or age, for example, many believe being overweight is voluntary and something you can change.

Accordingly, many think that companies should be allowed to make rules about employees’ weight.

But not so fast. Before an Iowa employer implements such a policy, it really must consider all the consequences.

True, there is no federal law that specifically prohibits obesity discrimination or makes “weight” a protected class. However, the amended Americans with Disabilities Act (ADA) of 2009 is arguably broad enough to provide employees with some protections.

An individual may be considered “disabled” under the meaning of the law if she or he has a physical impairment that “substantially” limits one or more major life activities. According to the ADA as amended, the term “substantially limits” is now to be broadly interpreted by the courts, and the phrase “major life activity” is likewise to be more broadly construed to include sitting, reaching, bending and lifting — all of which may be relevant activities for an obese person.

Several courts already have stated that an obese plaintiff may qualify for ADA protection, largely due to the limited mobility diabetes, and heart problems associated with obesity.

The Equal Employment Opportunity Commission is apparently taking a closer look at obesity related cases, also. In 2012, the EEOC settled two major cases on weight-related workplace discrimination.

The amended ADA also makes it easier for obese people to be covered under the “regarded as” definition of disability, which focuses on whether the employer believed the person was disabled. So, any comments about a person’s weight such as “out of shape” will be used against an employer, as is automatically including them in an obesity or similar wellness program.

These same risks apply with equal force to individuals considered “underweight” or “too skinny.” Indeed, anorexia nervosa or other eating disorders often associated with extremely thin people likely could be considered an actual or perceived disability under the amended ADA.

If an employee is disabled within the meaning of the law, you then have a duty to reasonably accommodate that disability. Such accommodations may include special seating modifications, elevator privileges, closer parking spaces and so on.

This is not cut and dried, however. There are certainly people who are overweight or have a BMI that is higher than is considered healthy but are not obese enough to substantially limit a major life activity.

Likewise, the amended ADA did not change the employee’s burden of proof to show that she or he is “qualified” for the job. Employers may continue to use criteria that are job related to select qualified employees, and to hire people who can perform the essential functions of the job.

If a weight requirement is directly related to the essential job requirements, then an employer can impose that requirement. For example, in one case a court upheld Verizon’s policy that telephone pole service repair people may not weigh more than 325 pounds to perform aerial work.

In any event, aside from safety or job requirements, should an employer care about its obese employees? Do you want to lose some great candidates by not considering them?

And, what are you going to do if your star employee gains weight?

The EEOC’s General Counsel stated: “It is important for employers to realize that stereotypes, myths, and biases ... should not be the basis of employment decisions.”

You also may run afoul of other laws aside from the ADA: Remember that even a neutral policy that has a disproportionate affect on a particular group also may be illegal under Title VII. For example, according to one source, black women are more likely to be overweight according to BMI.The trend appears to suggest that courts and agencies will include obesity as a disabling impairment. An employer accordingly should make sure any weight restrictions are directly related to the job’s essential functions and necessary safely to perform the job.

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