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.

It is well understood that employers must including severe obesity, is not a disability unless afford their employees and applicants the individual has an underlying physiological protections against workplace discrimination condition. Such underlying physiological conditions based on age, disability, gender, religion, race, include, but are not limited to, Type 2 diabetes, national origin and sex through the federal civil hypertension, or a thyroid disorder. rights laws. There are some physical attributes, The courts all relied on the Equal Employment like the weight of an individual, that are not Opportunity Commission (the “EEOC”) guidance explicitly protected under these laws. However, the when making their decision. According to the legal landscape seems to be changing and new EEOC interpretive guidance “the definition of protections may be afforded to individuals based the term ‘impairment’ does not include physical on their size. In light of these changes, employers characteristics such as eye color, hair color, leftshould continue to educate themselves and begin handedness, or height, weight, or muscle tone that implementing new measures to reduce the potential are within “normal” range and are not the result of a chances of being accused of weight discrimination. physiological disorder. The definition, like-wise, does

While no federal laws protect employees and not include characteristic predisposition to illness or applicants from weight discrimination in the disease. Other conditions such as pregnancy, that are workplace, employers should be aware of state and not the result of a physiological disorder are also not local laws and court interpretations of the same impairments [ . . . ] The definition of an impairment that afford greater protections. At the state level, also does not include common personality traits Michigan is the only state that has enacted a law such as poor judgment or a quick temper where which prohibits every employer in the state from these are not symptoms of a mental or psychological committing any type of discrimination based on disorder.” weight. More specifically, employers are prohibited Interestingly enough, despite a plain reading of from refusing to hire, terminating, discriminating in this interpretive guidance, the EEOC has taken the compensation, or limiting an employee or applicant position that obesity alone is an impairment and the that deprives them of an opportunity simply because employee is not required to show that there is any of their weight. And while other states may not have underlying physiological condition that caused the followed suit to date, many local municipalities obesity. One federal court in Louisiana has sided with are enacting laws protecting against weight the EEOC’s position that obesity alone is enough to discrimination. Employers should ensure they constitute disability discrimination. review applicable local laws to ensure they remain Obviously, this causes conflict and uncertainty in in compliance with these procedures. the legal realm of whether obesity alone is enough

More importantly, however, while there are no for a discrimination law suit to be brought against federal laws expressly protecting employees from an employer. Ultimately, while it appears that courts weight-based discrimination, federal appellate will most likely not change their holdings that courts have addressed the issue of whether obesity obesity alone is a disability unless the EEOC amends and weight should be considered a medical its interpretive guidance. condition that could be a disability under the Regardless, employers should remain vigilant Americans with Disability Act (“ADA”). Surprisingly, and aware when making any employment four circuit courts in the 2nd, 6th, Seventh and decisions on physical characteristics like weight. Eighth Circuits have all agreed that obesity alone, 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.