HUMAN RESOURCES
Weight Discrimination IN THE WORKPLACE BY JACK L. SHULTZ AND SARAH J. KNIEP
O’NEILL, HEINRICH, DAMKROGER, BERGMEYER & SHULTZ, P.C., L.L.O.
I
t is well understood that employers must afford their employees and applicants protections against workplace discrimination based on age, disability, gender, religion, race, national origin and sex through the federal civil rights laws. There are some physical attributes, like the weight of an individual, that are not explicitly protected under these laws. However, the legal landscape seems to be changing and new protections may be afforded to individuals based on their size. In light of these changes, employers should continue to educate themselves and begin implementing new measures to reduce the potential chances of being accused of weight discrimination. While no federal laws protect employees and applicants from weight discrimination in the workplace, employers should be aware of state and local laws and court interpretations of the same that afford greater protections. At the state level, Michigan is the only state that has enacted a law which prohibits every employer in the state from committing any type of discrimination based on weight. More specifically, employers are prohibited from refusing to hire, terminating, discriminating in compensation, or limiting an employee or applicant that deprives them of an opportunity simply because of their weight. And while other states may not have followed suit to date, many local municipalities are enacting laws protecting against weight discrimination. Employers should ensure they review applicable local laws to ensure they remain in compliance with these procedures. More importantly, however, while there are no federal laws expressly protecting employees from weight-based discrimination, federal appellate courts have addressed the issue of whether obesity and weight should be considered a medical condition that could be a disability under the Americans with Disability Act (“ADA”). Surprisingly, four circuit courts in the 2nd, 6th, Seventh and Eighth Circuits have all agreed that obesity alone,
including severe obesity, is not a disability unless the individual has an underlying physiological condition. Such underlying physiological conditions include, but are not limited to, Type 2 diabetes, hypertension, or a thyroid disorder. The courts all relied on the Equal Employment Opportunity Commission (the “EEOC”) guidance when making their decision. According to the EEOC interpretive guidance “the definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, lefthandedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder. The definition, like-wise, does not include characteristic predisposition to illness or disease. Other conditions such as pregnancy, that are not the result of a physiological disorder are also not impairments [ . . . ] The definition of an impairment also does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” Interestingly enough, despite a plain reading of this interpretive guidance, the EEOC has taken the position that obesity alone is an impairment and the employee is not required to show that there is any underlying physiological condition that caused the obesity. One federal court in Louisiana has sided with the EEOC’s position that obesity alone is enough to constitute disability discrimination. Obviously, this causes conflict and uncertainty in the legal realm of whether obesity alone is enough for a discrimination law suit to be brought against an employer. Ultimately, while it appears that courts will most likely not change their holdings that obesity alone is a disability unless the EEOC amends its interpretive guidance. Regardless, employers should remain vigilant and aware when making any employment decisions on physical characteristics like weight. More specifically, if an employee or applicant has
an underlying physiological condition that has caused obesity, they may be protected by law. The employee will be required to prove that they have such impairment and it has substantially limited a major bodily function or life activity in order to be a disability. Of course, there are certain actions employers can take to reduce the risk of being named in a weight discrimination law suit while also investing in the current employees. First, it would be wise to ensure that all job descriptions that have weight requirements reasonably relate to the essential duties and functions of the position. If they are not actually related to essential duties and functions, they should be amended. Second, listen and be alert to employees and applicants that may require reasonable accommodation to complete the essential function of their position if they request it. Third, do not automatically make the assumption that an employee or applicant is unable to perform essential duties of a job simply because they may be overweight. Furthermore, do not automatically assume that an employee or applicant’s weight is not related to an underlying physiological condition. Many overweight individuals do have underlying conditions that would cause them to meet the ADA’s definition of impairment. It may be beneficial to offer company-wide health incentives, such as wellness programs, gym membership stipends or other healthy lifestyle benefits. Undoubtedly, there is a movement toward protecting obese employees and applicants from work-place discrimination, and it is likely that more states and cities will implement laws to protect against weight bias. In response to this trend, employers should take the time now to begin to implement regular practices and procedures now to ensure they are protecting their establishments and employees from exposure to liability and foster a healthy work environment.
Editor’s Note: This article is not intended to provide legal advice to our readers. Rather, this article is intended to alert our readers to new and developing issues and to provide some common sense answers to complex legal questions. Readers are urged to consult their own legal counsel or the authors of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances. The authors of this article, Jack L. Shultz and Sarah J. Kniep can be contacted at (402) 434-3000, or at O’Neill, Heinrich, Damkroger, Bergmeyer & Shultz, P.C., L.L.O., P.O. Box 82028, Lincoln, NE 68501-2028, jshultz@ohdbslaw.com and skniep@ohdbslaw.com.
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