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Why can't I fire overweight employees? Excerpted from New Mexico Employment Law Letter, written by attorneys at Tinnin Law Firm, A Professional Corporation August 12, 2005 Q: I am the manager of a retail business that sells outdoor recreation and fitness products. Being something of a fitness nut myself, I'm concerned about what I see as the obesity crisis in our country, particularly among young people. What's worse, it seems to be becoming more of a problem among our employees. Everyone knows that obesity is bad for your health, and overweight people just look out of place in our business because of the products we sell. I decided that I would like to impose some weight standards on our workers for their own good health and for the image of our business, so I asked my HR director to prepare a draft for me. She spoke to our attorney, who told her that we would be exposing ourselves to legal liability if we adopted and enforced weight guidelines. Is he right? If so, why? A: Your attorney is correct. Although you might structure a policy that's legal, there's no doubt that adopting weight standards in a retail sales business would produce a high probability of legal claims from rejected job applicants or employees who are fired for failing to meet your standards. While you, like many Americans, continue to cite obesity as the primary factor in determining overall health or longevity, that assumption has been called into question. Indeed, the federal government recently revised its previous position that obesity was the second leading cause of death in the United States, dropping it to seventh in the overall ranking. A recent study cited by the government found that carrying some extra weight, especially for people over 60, can actually lower the risk of dying. Disability protection The Americans with Disabilities Act (ADA) defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities." Although physical characteristics, like weight that's within the "normal" range, aren't usually considered disabilities, those that are caused by a physiological disorder are. The ADA defines "physical or mental handicap" as a condition that "substantially limits one or more of an individual's major life activities." To be covered by the ADA, you must employ at least 15 people. The ADA protects obesity as a disability. The morbidly obese are more likely to be protected than the merely overweight are. Ironically, the result may be that disability laws will bar you from firing an obese employee because of perceived notions of his inability to do the job, but they don't prohibit discrimination on the basis of looks. Being 'regarded as' disabled Regardless of whether your assumptions about the effect of obesity on someone's health are correct, you must remember that the ADA's prohibitions against discrimination aren't limited to people who are actually disabled or handicapped. Both laws also forbid discrimination against employees who are "regarded" as disabled. So even if an overweight employee isn't "disabled" under the ADA, he may nonetheless be protected if you "regard" him as being disabled or handicapped. Consequently, your motive for adopting weight standards brings into question the validity of any standards you adopt. If at least part of your motive is to protect your employees' health, it can be argued that you regard them as disabled and they are therefore protected by the ADA. On the other hand, if you say only that you don't want to hire or retain a fat person because "it doesn't look good in your type of business," you may be OK (but check state human rights laws to be sure). Genetic profiling Many states have recently adopted laws preventing discrimination based on genetic profiling. That means that in those states, employees whose obesity is attributable to a genetic illness might claim that they were subjected to a hostile work environment if their employer fails to protect them from taunts by co-workers or customers. So tread carefully when it comes to excluding overweight employees from your workplace. Copyright © 2005 M. Lee Smith Publishers LLC. This article is an excerpt from NEW MEXICO EMPLOYMENT LAW LETTER. New Mexico Employment Law Letter is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in the newsletter should be addressed to an attorney.
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People sometimes forget that OSHA was created not only to protect employees against workplace injuries, but also to help safeguard their overall health. By presenting vital information on OSHA standards plus independent research, this special report shows how to foster optimum physical, emotional, and psychological health among your employees. 
Do You Know the Law in Your State?
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