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Super-size bias: the last legal discrimination? Excerpted from North Dakota Employment Law Letter, written by attorneys at the law firm Vogel, Weir, Hunke & McCormick, Ltd. Americans are in love with "super-size." Big trucks, bigger hamburgers, and televisions that are now "home theaters" feed a hungry consumer market. The national obsession with bigger has come at a price: The Centers for Disease Control and Prevention report that over 60 percent of the American population now can be classified as overweight. Strangely, at a time when Americans are heavier than ever, our perpetual national fixation on our (ever-increasing) waistlines continues to feed what some call the last acceptable form of discrimination: weight discrimination. What are your obligations when dealing with overweight applicants and employees? Are there legal consequences for refusing to hire an applicant based on weight? Weighty issue Fat jokes and popular movies that ridicule fat characters are a clear testimonial to the fact that obese persons are the last acceptable targets of discrimination. This apparent discrimination covers all aspects of life. Various studies have suggested that teachers, health care professionals, employers, and even parents react less favorably toward obese persons. Being fat may also affect a person in adoption proceedings, jury selection, housing, and many other areas of life. One of the most prevalent and well-studied areas of discrimination against obese people is employment. "Obese" is generally defined as a body weight more than 20 percent over the standard height-weight table. "Morbidly" obese is typically defined as being more than 100 percent above the norm. Based on his review of 29 research studies, Professor Mark Roehling of Western Michigan University noted, "Overall, the evidence of consistent, significant discrimination against overweight employees is sobering." Among other things, Roehling concluded:
The American public at large seems to be aware of that widespread discrimination. In a recent poll, 47 percent of the American workers polled indicated that they believe obese workers suffer discrimination in the workplace. In the same poll, 32 percent said obese workers are less likely to be respected and taken seriously in the workplace. People of size speak out Although many obese people have anecdotally reported silently suffering humiliation in the workplace for years, recently, more self-designated "people of size" are taking their claims to court. One of the most recent claims was a case settled in October between McDonald's in Connecticut and Joseph Connor, a six-foot one-inch, 420-pound applicant for the position of cook. Connor had been laid off from his cook position at a mall food court and had six years of experience as a cook. McDonald's hired him but told him he couldn't begin work until his pants (54-inch-waist) and shirt (22-inch-neck) arrived, supposedly in about three days. Connor soon received a call that his shirt had arrived but not the pants. Connor waited days, then weeks and months. He called McDonald's but contended that his calls were never returned. He went to the store and saw that others hired after him were working. Finally, he sued McDonald's, contending that it "regarded" him as disabled based on his morbid obesity. He also contended that his obesity was a disability. Connor had gained over 130 pounds after being hit in the stomach by a stray bullet years earlier while weighing 270 pounds. McDonald's denied liability, contending that he wasn't disabled or regarded as disabled, but it ultimately settled the claim in a confidential settlement. Here are some other examples of claims in recent headlines:
The law according to Dr. Phil (and the ADA) Discrimination based on weight alone is legal in almost all jurisdictions in the United States. In fact, the Equal Employment Opportunity Commission regulations on the Americans with Disabilities Act (ADA) specifically state that "except in rare circumstances, obesity is not considered a disability impairment." Surprising? Well, maybe not. Remember what Dr. Phil says? Something like weight is about choices? That's one of the reasons that weight alone isn't considered a disability under the ADA. Dr. Phil always talks to his audience about the fact that for most people, weight isn't solely genetically determined or based on a medical condition. Most of us can take measures to control our weight and bring it down within more normal ranges. That means it isn't an "immutable" condition; rather, it's something we can change, or a "mutable" condition. When you think of most other discrimination laws, they're designed to protect immutable conditions, such as race, sex, national origin, and most disabilities. When a person's obesity is caused by an underlying physiological or mental impairment or results in a substantially limiting impairment, such as hypertension, arthritis, or a heart condition, the combined effect may qualify as a disability under the ADA. The legal issue that remains is whether the individual is substantially limited in one or more major life activities, including activities of central importance to most people's daily lives. Under state and federal law, an obese person with a disability may not be subject to discrimination in employment based on weight and must be provided reasonable accommodation. If no disability is present, however, all protection is lost except in the following areas:
Practical pointers For most employers, dealing with weight issues in the workplace is unfamiliar territory. Because few cases of weight discrimination in employment have been raised, there's little to guide you when dealing with obese applicants and employees. We've put together a few suggestions that might be useful to you: Be aware of the issue. The most important thing is to have your radar up and running for this issue. When dealing with obese applicants or employees, particularly women, ask yourself whether your company's employment decisions might subconsciously — or consciously — be affected by weight. Objectively compare candidates. Make sure discipline is being applied equitably among all employees. Be fair. Don't assume obese people have no rights. Although obesity alone isn't protected under federal law, remember that a big exception exists if a related physical disability exists or you regard the person as disabled! Your own bias may create a claim if you wrongly believe that the person is unable to do the job because of an impairment related to obesity. Don't hide obese people in the backroom. Segregating obese employees and shunting them off to the backroom, where they will have no customer contact, is a form of discrimination. Don't make assumptions based on stereotypes about the ability of any employee to function in a customer contact position. Seriously consider each employee's positive and negative attributes based on facts, not weight, before making any decision on job placement. Copyright © 2004 M. Lee Smith Publishers LLC. This article is an excerpt from NORTH DAKOTA EMPLOYMENT LAW LETTER. NORTH DAKOTA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. 
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