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When can obesity be a factor in employment decisions?

March 20, 2013

Article courtesy of SBAM Approved Partner AdvanceHR

More than one-third of adults in the United States are obese, says one health-related government agency.  That means, if you are in business long enough, there’s a good chance you will have to consider whether the weight of an employee or a job applicant hinders that individual’s ability to safely handle all the elements of a specific job. Obviously, this is an area of discussion most employers would prefer to avoid. 

About 36 percent of U.S. adults are obese, according to the Centers for Disease Control and Prevention. And the proportion of the U.S. population deemed morbidly obese (with a BMI exceeding 40) is estimated at 7 percent. Sooner or later, you’ll be forced to make a judgment regarding whether a job applicant or employee’s weight is grounds for not hiring the candidate, or terminating an employee who appears to be incapable of performing required tasks. Chances are, you already have. But what are the legal ground rules?

“The employer should try to avoid basing an employment decision on obesity; unfortunately, that may not always be possible,” says Jeff Weintraub, a labor lawyer and ADA expert with the Fisher & Phillips firm.

In a recent letter to clients, he and his colleague Jennifer J. Riley sketched this scenario:

A hiring manager is seeking to fill a slot for a materials handler in a warehouse. On paper, the first candidate’s credentials look good. But in the interview, it is evident the candidate is about 5’4″ and appears to weigh more than 500 pounds. The hiring manager worries that the candidate might be unfit for the job. While accommodations might be possible to assist the individual with certain tasks, the manager worries that in an emergency, such as a fire, the candidate might not be able to evacuate the building quickly enough.

The verdict: No job offer is made.

What Would the EEOC Say?

Would the EEOC assert that too much emphasis was placed on obesity in that decision? Neither the Americans with Disabilities Act (ADA) nor any other federal law specifically addresses obesity. The ADA defines a disability as an impairment “that substantially limits one or more major life activities, a record of such an impairment or a being regarded as such an impairment,” according to Weintraub.

But when Congress amended the law in 2008, it broadened the definition of “disability” for purposes of determining illegal discrimination. Congress “indicated that the definitions of ‘substantially limits’ and ‘major life activities’ should be interpreted broadly.” That provides a stronger basis for morbid obesity being considered a protected disability.;

Enter the Courts

The EEOC’s compliance manual indicates that standard obesity is not a disability, but some courts have accepted the argument that morbid obesity is a protected disability, even in the absence of an underlying physiological disorder (as in theory required by the ADA), according to Weintraub.

Last summer the EEOC, mindful of these rulings, challenged the employer of a 600-pound employee who was too big to operate a forklift because he didn’t fit in the seatbelt. The employee requested a seatbelt extender, but the employer refused to provide it, and terminated the employee. The employer and EEOC reached a settlement in the case.

So now, the EEOC has clearly gone on record, that there may be cases “when the physical characteristic is far outside the normal range and constitutes an ADA-protected impairment even absent a physiological disorder,” asserts Weintraub.

Avoiding Litigation

So what should employers do to avoid litigation? Weintraub and Riley offer these pointers:

  • Avoid making assumptions about how obesity may affect an individual’s ability to perform job functions,
  • Avoid conveying any belief that applicants’ or employees’ obesity is an impairment or hinders performance of the essential functions of the job sought or held, or that the individual poses a safety risk, and
  • Don’t automatically reject accommodation requests from morbidly obese or obese employees.

However, when an employee requests an accommodation, employers are within their rights to ask for documentation to demonstrate that the employee has a disability protected by the ADA. That includes, in the case of obese employees, evidence that the obesity is the consequence of an underlying physiological disorder (as this issue isn’t yet settled). Still, given recent court rulings and EEOC actions, you must exercise caution in making employment decisions based on that evidence, according to Weintraub.

The bottom line, he adds: “EEOC continues to stake out its position that obesity, even if not medically related, can constitute a covered disability under the ADA.” He disagrees philosophically with that position, “as it would essentially allow an individual to create his/her own disability.”

Not all courts will back that EEOC position; things are still in flux. So the real question now, Weintraub says, is what kind of consensus the courts ultimately reach on this issue. Meanwhile, employers should tread cautiously.

Still need clarification?  Use SBAM’s Ask an Expert service.

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