Can I hold obesity against job applicants?

Q. Can I implement a rule against hiring people who are overweight?

A. Conventional wisdom says that, with the exception of the morbidly obese, obesity is not a characteristic protected by anti-discrimination laws. Indeed, in 2006, the 6th Circuit has said, “To constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the result of a physiological condition.”

However, on Jan. 1, 2009, the ADA Amendments Act (ADAAA) took effect. The ADAAA broadens what qualifies as a “disability” under the ADA, and includes a laundry list of physiological conditions that previously might not have qualified as an ADA-protected disability.

It remains up in the air exactly how broadly this definition has been expanded. I do not believe it has been expanded so far as to encompass things such nonphysiological obesity. We will have to wait and see, however, on the breadth of the ADAAA until courts and the EEOC start weighing in.

In other words, your rule carries some legal risk.