Wednesday, September 05, 2012

Weight Discrimination May Violate the Law

A Texas company recently made headlines when it announced it would not hire overweight workers. Do employees have protections from weight discrimination? Maybe - it depends on the circumstances.

The Citizens Medical Center in Victoria, Texas, announced that it would no longer hire any workers with a Body Mass Index of 35 or more. As examples, this is 210 pounds for someone who is 5’5,” and 245 pounds for someone who is 5’10.” The BMI is calculated based on an individual’s height and weight. The company reportedly enacted the policy due to customer preferences as to the appearance of its workers.

Nearly 37% of adults in this country are considered obese, according to the most recent statistics from the Centers for Disease Control. A recent study at Yale University concluded that workplace discrimination against overweight people, especially women, is as common as racial discrimination. Only one state, Michigan, and six cities grant specific protections to workers based on weight. Colorado has yet to adopt any such express protections.

Although federal law does not specifically include “weight” as a protected category, at least one federal circuit has already recognized that morbid obesity can qualify as a disability under federal anti-discrimination laws, and other courts are beginning to let juries decide if discrimination based on weight related conditions violates the Americans with Disabilities Act (ADA). The ADA also bars discrimination against individuals who are perceived as having a disability. One truck driver won $109,000 in damages after his employer suspended him without pay based on the assumption that his obesity made him unfit to drive a truck.

Additionally, some ADA-recognized disabilities such as depression can cause weight gain. And other disabilities require pharmaceutical drugs that can themselves cause weight gain, including some drugs used to treat conditions such as diabetes, high blood pressure, seizures, migraines, epilepsy, asthma, and depression. In these instances, employers could violate the ADA by taking weight into account in employment decisions if workers are otherwise able to perform the essential functions of their positions.

These kinds of BMI hiring restrictions also could raise claims of sex, race, or age discrimination, since the U.S. Centers for Disease Control reports that the correlation between the BMI and body fat varies by sex, race, and age. If such a BMI hiring policy disproportionately affects one race or gender over another, it could subject the employer to liability for discrimination under other federal civil rights laws.

And BMI alone does not equate to health, according to Yale University’s Rudd Center for Food Policy and Obesity, since normal weight individuals can have high-risk conditions such as high blood pressure or cholesterol, while overweight individuals can have healthy nutritional and behavioral habits. Courts have struck down “customer preferences” as justification for other types of discrimination, such as race, sex, and age biases, and stereotypes about weight are not good indicators of job performance.

Some employers are addressing these issues by using incentives rather than punitive measures, such as adopting employee health contests and other incentive programs. According to one recent study, nearly 60% of responding companies offered wellness and health improvement programs, up from 37% last year.

Employees who believe they have been subjected to weight discrimination should contact competent workers' rights legal counsel and may also consider filing a Charge of Discrimination with the United States Equal Employment Opportunity Commission or state anti-discrimination agency, such as the Colorado Civil Rights Division.

Employers who are considering such a policy should contact legal counsel before enacting such a policy to determine whether the policy would violate the law in their particular circumstances.

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