Cut the fat: Can you reject obese applicants?

December 12, 2012
in Featured Article,Office Administration

In the past decade, two things have definitely grown: Americans’ waistlines and the desire for U.S. employers to reduce their employee-related health care costs.

Those two trends have more employers considering a legally risky thought: Can we refuse to hire overweight people?

A Texas hospital recently made headlines when it decided to stop hiring people with a body mass index (BMI) of 35 or higher. Bad publicity led the hospital to suspend its policy.

Still, with nearly 36% of adults in this country considered obese, this issue isn’t going away.

What does the ADA say? No federal employment law, only one state (Michigan) and a handful of cities specifically prohibit employers from discriminating against overweight people in hiring, firing and job conditions.

That means the debate typically comes down to a question of whether obesity is a covered “disability” under the Americans with Disabilities Act. (The ADA protected disabled people from on-the-job discrimination.)

The U.S. Equal Employment Opportunity Commission (EEOC) has said the ADA does protect people who are morbidly obese. Simply being overweight doesn’t typically entitle an employee to ADA protection. But overweight employees have brought successful ADA claims under the following arguments:

The employee has a weight-related condition—such as diabetes, heart disease or hypertension—that, on its own, can trigger ADA protection. Plus, some ADA-recognized disabilities such as depression can cause weight gain, as can certain medications that people take for ADA-covered conditions (diabetes, seizures, etc.).

The employer acts on stereotypes and assumptions. If you perceive employees or applicants to be disabled, they will earn ADA protection.

For example, a 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. (McDuffy v. Interstate Distributor)

Men and women are held to different weight standards. A Yale study found that overweight women are twice as likely to face discrimination than overweight men. If you treat overweight women differently, you could face a sex bias lawsuit.

Here’s the skinny

The legally safe bet is to ignore applicants’ weight, unless it could prevent a candidate from performing the essential functions of the job. There’s a good chance that the weight problem could be tied to a medical condition—or causing a medical condition—which would then make that person protected under the ADA.

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