The statistics are out, and they’re not surprising: Americans are getting fatter. In fact, the number of obese adults in the U.S. more than doubled between 1980 and 2008. The Centers for Disease Control says that today over one-third (35.7%) of Americans are obese.
Can an employer assume that a lean employee will have better attendance, lowered health insurance costs, and be more productive? And if so, does this mean that an employer can discriminate against an obese job applicant or employee?
Is obesity a protected class? The answer to that question may surprise you.
The impacts of obesity on health:
Many studies have been done on the impacts of obesity on health. The CDC and the National Institute of Health (NIH) relate obesity to heart disease, stroke, diabetes, and some types of cancer, all of which are leading causes of preventable death.
In 2008, the medical costs associated with obesity were about $147 billion.
In a time when businesses are fighting rapidly rising health care costs and operating with fewer employees, it’s understandable that obesity would be of concern to employers.
The modern workplace contributes to obesity:
There is a case to be made that work is a contributing factor to the expansion of obesity in America. Our jobs are simply more sedentary.
We have moved away from production focused jobs to those where we sit at a desk facing our computers for eight hours a day.
- Researchers who looked at occupations over the last 45 years found that, on average, we utilized between 124-140 less calories a day at work than we used to due to our lowered physical activity.
- A CareerBuilder survey of 5,700 workers found that other contributing factors included eating because of stress, eating meals out due to our jobs, workplace celebrations, skipping meals because of time constraints, temptations such as office treats, and pressure to eat food that co-workers bring in.
Is obesity becoming a protected class?
When the Americans with Disabilities Act was first passed, the EEOC viewed severe or morbid obesity as an impairment under the Act, but not general obesity itself. But this appears to have changed with the ADAAA (Americans with Disabilities Act Amendments Act).
In the 2011 version of the EEOC’s Compliance Manual, they have removed the language that says that obesity is rarely an impairment. Many people believe that obesity may be on its way to being treated as a protected class.
In fact, earlier this year the American Medical Association classified obesity as a medical disease. While this classification doesn’t in and of itself affect the ADA, it appears we’re inching closer to treating it as a protected class. Here are some cases to think about.
Businesses targeted for obesity discrimination:
In Montana, Eric Felt sued BNSF Railway after it took back his offer of employment as a conducter due to the fact that his obesity would cause him to be unsafe in the position. They told him if he lost 10% of his body weight, or underwent physical exams at his own expense, they would reconsider.
After his complaints went through the legal process, the Montana Supreme Court ruled that his obesity was an impairment under the ADA, and therefore he was protected and required accommodation under the law.
An interesting point about this ruling was that the obesity factor stood alone as an impairment, and did not have to be linked to an underlying physiological condition.
Family House of Louisiana
Family House of Louisiana was ordered to pay $125,000 to settle a discrimination lawsuit brought against them by the EEOC on behalf of Lisa Harrison. They alleged Harrison was terminated due to her severe obesity.
An attorney for the EEOC stated:
Employers cannot rely on unfounded prejudices and assumptions about the capabilities of severely obese individual… Any notion that these individuals are not protected, based on the wrongheaded idea that their condition is self-inflicted, is simply wrong and without legal basis.
Citizen’s Medical Center
Last year, Citizen’s Medical Center in Texas announced that job applicants would not be considered unless they had a body mass index (BMI) of less than 35, which would eliminate all obese applicants.
Their express purpose for this policy was to have employees “fit with a representational image or specific mental projection of the job of a healthcare professional.”
Whether or not this blanket policy violates the EEOC’s guidelines is unclear, but they did come under severe criticism, and quickly abandoned their policy due to the public outcry.
The future of obesity in the workplace:
It seems apparent that obesity and employment are still figuring out how they’ll work together. But some communities prefer to be trendsetters, rather than wait for federal laws to guide them.
As of now, only one state, Michigan, expressly prohibits employers from discriminating against employees based upon their weight. Their civil rights law, passed in 1976, includes a prohibition of discrimination based on weight.
Six cities in the U.S., including San Francisco, Washington D.C. and Madison, WI, either outright forbid discrimination based on weight, or forbid discrimination based on personal appearance. Legislation is now pending in Nevada which will also make it illegal to discriminate based on weight.
How should employers address obesity?
Employers need to be careful about making assumptions about the effects and causes of an employee’s or job applicant’s weight. Even if the weight, in and of itself, is not a disability qualifying for ADA protection, under the ADA, if the employer perceives that a disability may exist, liability may then arise under the ADA.
For example, if you as an employer, perceive that an employee is out of shape enough that they couldn’t perform the duties of a job, then your perception and assumptions could be enough to qualify them for protections under the ADA.
Reasonable accommodations for obese employees:
Under the ADA, employers are required to provide reasonable accommodations. This can come in many forms:
- A special chair that can hold an individual weighing up to 600 pounds
- Sturdier toilets in company restrooms
- Moving cubicle walls to provide additional workspace
- Allowing employees to sit on high stools rather than stand all day to serve customers
- Positioning employees on the ground floor to avoid excess climbing of stairs
- Providing alternatives to company uniforms that will accommodate employees’ weight
This issue is likely to remain a hot potato. The National Association to Advance Fat Acceptance’s study states that overweight adults are 12 times more likely to experience discrimination in employment, obese adults 37 times, and severely obese people 100 times.
- 43% of overweight people they surveyed reported they had already experienced weight bias from employers and supervisors.
- Overweight people earn up to 6% less than their non-overweight co-workers and are more likely to be viewed as underachievers.
- 54% reported being stigmatized by co-workers.
- Many were concerned that they faced dismissal or suspension due to their weight, had concerns they wouldn’t be hired for positions, and reported being targets of derogatory comments and jokes.
With Michelle Obama’s focus on the war on weight and the EEOC’s expansion of protections under the ADA, we will no doubt continue to see debate on the impacts of obesity in the workplace and whether it should become the next protected class.
Originally published in the Kitsap Peninsula Business Journal.