“Obesity discrimination” is common – but is it legal?
May 12, 2008 by Sam NarisiPosted in: In this week's e-newsletter, Job Screening Tests, Latest News & Views
A new study shows that treatment based on job candidates’ and employees’ weight is a common form of bias. In most states, there’s no law against that – but here’s how it can get firms in trouble.
There’s no federal law against “obesity discrimination,” and only one state (Michigan) has anything on the books against using weight as the basis for an adverse employment actions But that doesn’t mean there’s no way to get sued for it.
Sex discrimination
The Yale University study found that weight discrimination was the fourth most common form of bias encountered at work. But for women, it came in third. Female workers were found to be twice as likely to encounter weight discrimination as men, with 10% of women saying they’d experienced it, compared to 5% of men.
That means there are companies out there who will hire fat men but not fat women. That practice could land a company in court for sex discrimination.
Disability law
Employees haven’t had much luck claiming obesity is protected under the Americans with Disabilities Act (ADA). But it can happen if someone’s obesity is caused by underlying conditions, such as metabolic disorders or thyroid conditions, that might qualify as disabilities.
Also, the EEOC has said the more serious condition known as “morbid obesity” might on its own be considered a protected disability.
Tags: Discrimination, obesity, overweight
May 14th, 2008 at 2:51 pm
What it come down to is, that if the individual is qualified for the position, vs. some one else is more qualified for the position, then the most qualified person should get the position. Everything else is discrimination when using values that do not pertain to the position. Does the discrimination have to be on a list of laws in order for people to see the action as decimation?
May 15th, 2008 at 11:00 am
I agree that it should simply be the most qualfied person should get the position, but I sometimes feel that people are not aware of their own prejudices when making these decisions. That being said, I as a woman who is overweight myself, have never felt that I was turned down because of my weight EXCEPT for one interview that I went on. It was blatantly obvious that as far as my interviewer was concerned I did not meet some visual criteria that he had. The interview was rushed and he was not interested in discussing any of my skills or experience. The fact that he was much heavier then myself was what finished the deal for me. Who would WANT to work in such an atmosphere?
May 15th, 2008 at 4:20 pm
The company I work for is now using “wellness” as one of the criteria on our annual reviews. What this really translates to is are you fat or fit? If you are fat, you are assummed to not be participating in your physical wellness. Doesn’t matter if you are on prescription drugs, follow doctors orders, etc. If you are a fat woman, you get marked down for it, thereby effecting the raise you would have been given. I wish there was someway I could cry discrimination without jeapordizing my job.
June 4th, 2008 at 10:11 am
I can say as an overweight female… I have been discriminated against…and I think that there should be a law against it…. I was fired from a McDonald’s(of all places) for “my appearance” the company did not have uniforms big enough to fit a large person so the uniform gapped in the front… I had gotten awards for the “most sales per hour” and the “most helpful” employee… but this did not matter… I can say I am a “very clean, and very neatly dressed” person… I take pride in my appearance, I never leave the house in the morning without a shower and making sure I look nice…
I know that this one incident that happened in my teens greatly changed me (very self conscience and insecure in job interviews) still to this day… and I am in my late 40′s… I hope by telling my humiliating story that it may help lawmakers to change the way that large people are treated..
June 4th, 2008 at 2:34 pm
If I have a choice between two prospective employees of nearly equal abilities, I will choose the employee likely to have less absences and less medical problems in order to keep costs as low as possible. Thus, I will hire the fit, non-smoker over the less fit and/or smoker. Fitness and smoking are choices just like getting a degree or more certificates are choices to enhance a resume. The hiring decision is profit driven, not descrimination driven.
June 4th, 2008 at 5:28 pm
Don – I have one quibble with you statement in that you equate thin with fit. In an interview it is not possible to determine if someone is “fit” as in follows a regular exercise program. I have known people who are heavier who are quite fit. Some walk religiously, some do quite strenous dancing several times a week. And I have known people who are thin who don’t move at all and have horrendous eating habits.
I have been in the workforce for 30 years and have had perfect attendance for many of them. I have never been thin and unfortunately cannot claim to be fit either. It’s all in perception isn’t it?
June 13th, 2008 at 7:59 am
I also disagree with Don. You can be thin (which I am) and not be healthy (which I’m not) but I do not miss work over it. My daughter is a little overweight and did not get a job at a health food store. The manager told her that they were looking for someone who portrayed “healthiness”. My daughter has no thryoid and it is very hard to keep her weight down but she is still as healthy as me. I would have a good work ethic if I was thin or heavy and would not miss unless absolutely necessary.
July 2nd, 2008 at 10:35 am
Sam: Obesity is a protected class in New York
Don: You are on dangerous ground with your practices.
July 9th, 2008 at 11:21 am
Don – Have you considered that the “fit”, “non-smoker” could have an eating disorder which can carry a very high price tag in terms of productivity, high absenteeism, increase medical cost for treatment which affects renewal premiums not to mention the possiblity of loss of life and if you are an employer that offers employer paid life insurance it could really cost you.
July 9th, 2008 at 6:06 pm
Cindy – You first state that you are thin but not healthy. You then go on to state that your overweight daughter is as healthy as you are which doesn’t seem to be promoting your cause. I would think that portraying “healthiness” would be a BFOQ for working in a health food store, medical condition or not.
July 16th, 2008 at 2:31 pm
Don needs calibrating. In a former company we had an in house gym with fitness instructors who never worked out but all looked fit. We found all sorts of drugs (amphetamines) in their desks.
Fit?
August 20th, 2008 at 12:08 pm
Bottomline to all this, the next e-mail will be someone who says they were discriminated against because they were “thin”. The interviewer, who was “fat”, didn’t want a “thin” person around them. I’ve been in HR for over 30 years and we are now getting to the point that any candidate who is “not” hired wants to claim some form of discrimination. Where will it end? These scenarios never have the subjective included; such as, maybe the “fat” applicant had the qualifications, but spent most of the interview complaining about previous managers and fellow employees. Maybe the “thin” qualified candidate was selected because he/she had presented more positive interpersonal skills. There is no equation that X = Y in all these decisions. So, interview one candidate so no one has to hear “no”. P.S. I’m an overweight employee whose a red-head. Maybe it’s not my weight, maybe they don’t want redheads — only 4% of all people are natural redheads — now that’s a minority!!
September 3rd, 2008 at 1:17 pm
Good Grief Don – are you still employed? You are a lawsuit waiting to happen.
September 10th, 2008 at 11:31 am
I agree that Don is a little misled in his assuption, but frankly I applaud his honestly. Let’s face it, the law had not changed the fact that you will not go into a high-end martini bar and find a middle aged fat woman working as a hostess, no matter what her experience looks like.
In order to address these concerns, a change is necessary in how society places value or views success. However, I also agree with Nancy that it is so much easier to ‘play the victim’, than to examine ourselves honestly and develop those areas to which we have the capabilty.
September 10th, 2008 at 11:52 am
in all the above responses i do not see any language directed to “essential functions” of the job duties and responsibilites. Here in California you place a job description in front of the applicant and in detail go over the “essential functions” of that job. If the applicant cannot do all functions not hired. If applicant answers yes to all essential funcitons interview continues. If the applicant lies as to whether he/she can do all essential funtions once hired termination is probable. If applicant is obese but still can do essential functions no problem. If applicant is obese and cannot do essential funcitons due to obesity not hired. i.e. climb ladder, be on feet 5 hours a day walking through warehouse, or any other physical requirement. not a tough decision and everybody is up front as to what is expected of applicant. If applicant is hired (not obese) then becomes obese later in employment years, the human rights thing to do is work with that person in finding another position or counseling in losing weight etc.
November 19th, 2008 at 12:32 pm
When I read what N Huff said I feel for her. I have a friend. She has worked in fast food for years. She is very good at her job. Her husband works at the same fast food as she. She was up for managment but was told because her husband work at the same place she would not be considered for the management position so she applied at McDonald. She went in for interview and was told she would get a call two days later about the job. When she didn’t get the call she called back and talked to the manager. The manager stated to her that she would have gotten the call if she had gotten the job but she had gotten a bad reference from her last job. The manager hung up on her but failed to hang up the phone all the way so the connection was not cut. My firend had her phone on speaker and her husband, my daughter, and I could hear this manager talking.The manager said “Can you believe that fat cow just called me about the job?’ Someone else said “Who?” The manager stated “The woman I interview on Wednesday who husband works at the same place as she does.” “She is very qualified but who would want to work with a fat cow like her?” “I didn’t even call her references because I would never hire her.” As it so happened a freind of mine had just gotten off of work and had stopped at the same McDonalds to get a fast bite to eat. She seen and heard to whole conversation by this so called manager. After she picked up her kids from school she came over and we were still talking about it. That is when she realized what she had over heard.
We reported it to the owner and the corporation and the responce we got is insulting if not worse. This should very well be against the law. The so called manager should have been fired on the spot. Her actions are very inexcusable. Being a manager bring responsibility and comon sense. As far as Iam concerned she has neither.
November 19th, 2008 at 2:49 pm
Jean Reuter:
If this happened in NY, your friens should file with the Human Rights Division because obesity is a protected class.
February 25th, 2009 at 12:33 pm
Anon said: “The company I work for is now using “wellness” as one of the criteria on our annual reviews. What this really translates to is are you fat or fit? If you are fat, you are assummed to not be participating in your physical wellness. Doesn’t matter if you are on prescription drugs, follow doctors orders, etc. If you are a fat woman, you get marked down for it, thereby effecting the raise you would have been given. I wish there was someway I could cry discrimination without jeapordizing my job.”
This is the way things are heading folks. Regardless of whether employees are overweight or not, the fact of the matter is that unhealthy employees cost more. More time off, higher health costs and lower productivity. The goal of many of these programs is to get employees involved and to start having them participate in wellness programs with the goal of having a healthier workforce. Obviously these programs are not going to make everyone health, but they may result in more people making better, more healthy decisions.
February 26th, 2009 at 7:51 am
I am 5’5″ and weigh 118 pounds…Do I look healthy and fit? Yes, I do. But I’ve had cancer three times. I’m not going to say I’m not fit…I try to eat right and exercise but I could be a liability to my company if I get sick again….apparantly my healthy life style couldn’t keep me from getting cancer. So you can’t tell by looking at someone if they are healthy.
Our wellness program has done wonders for several of our team members. During our weight loss challenge two of our guys lost over 50 pounds and one of the team members who still works here kept if off and has lost more (total of 90 pounds!)
I think it is awful that a company would tie an increase in pay to the well program….that just can’t be legal. What if the team member has a thyroid disorder???? My daughter had hers removed (cancer) and constantly struggles with her weight.
February 26th, 2009 at 7:59 am
My company puts fitness as my responsibility, but then uses passive aggression to prevent you from getting better. There is nothing like a boss blocking your doorway at 5pm with extra work to really give you pressure in your decision to go to a treadmill and risk being fired or to stay and give them what they want.
By the way, I am a scientist and the term ‘fitness’, means the ability to reproduce, not how thin you are. People who are really thin don’t have enough body fat to have a child but they are termed ‘fit’. Perhaps they should change their requirements to ‘thin and attractive’.