Cutting the Fat: Can Employers Just Say ‘No’ to Obese Applicants?

In the past decade, two things have definitely grown: Americans’ waistlines and the desire for U.S. employers to reduce their employee-related health care costs.

Those two trends have more employers considering a legally risky thought: Can we refuse to hire overweight people?

A Texas hospital made headlines when it decided to stop hiring people with a body mass index (BMI) of 35 or higher. Bad publicity led the hospital to suspend its policy.

Still, with nearly 36% of adults in this country considered obese, according to the CDC, this issue isn’t going away.

What does the ADA say?

No federal employment law, only one state (Michigan) and a handful of cities specifically prohibit employers from discriminating against overweight people in hiring, firing and job conditions.

That means the debate typically comes down to a question of whether obesity is a covered “disability” under the ADA. (The ADA protected disabled people from on-the-job discrimination.)

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Simply being overweight or even obese doesn’t typically entitle an em­­ployee to ADA protection. But the EEOC has said that the ADA does protect people who are morbidly obese. And the ADA Amendments Act of 2008 broadened the definition of “disabled.”

Whether or not obesity is a protected ADA characteristic, overweight em­­ployees have brought successful ADA claims under the following arguments:

The employee has a related health condition. Weight-related conditions—such as diabetes, heart disease and hypertension—may be “substantially limiting” impairments that afford the employee ADA protection, regardless of the degree or cause of obesity.

Plus, some ADA-recognized disabilities such as depression can trigger weight gain, as can certain medications that people take for ADA-covered conditions (diabetes, seizures, etc.).

The employer acts on stereotypes and assumptions. If you perceive employees or applicants to be disabled, they will earn ADA protection.

For example, a truck driver won $109,000 in damages after his em­­ployer suspended him without pay based on the assumption that his obesity made him unfit to drive a truck. (McDuffy v. Interstate Distributor)

Men and women are held to different weight standards. A Yale study found that overweight women are twice as likely to face discrimination than overweight men. If you treat overweight women differently, you could face a sex bias lawsuit.

Here’s the skinny

The legally safe bet is to ignore applicants’ weight, unless it could prevent a candidate from performing the essential functions of the job. There’s a good chance that the weight problem could be tied to a medical condition—or causing a medical condition—which would then cause that person to be protected under the ADA.

Instead, focus on positive actions your organization can take to improve employees’ overall health. Two tips:

  • Implement a weight reduction program. Keep program participation voluntary and private, and involve employees in the planning.
  • Maintain a healthy workplace culture Ideas: Stock vending machines with healthy snacks; offer annual health fairs with cardiovascular screenings; obtain discounts for staff to local health clubs; or other activities that attract em­­ployees of all fitness levels.