Trend: Employment Lawsuits Based on Obesity Discrimination

The problem of obesity in the U.S. has been well documented. According to a survey done by the Centers for Disease Control and Prevention, approximately one-third of the adults in the U.S. (33.8%) are obese. The survey found that no state had a prevalence of obesity less than 20%. Thirty-six states had a prevalence of 25% or more, while 12 of these states (Alabama, Arkansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia) had a prevalence of 30% or more.

Although BMI correlates with the amount of body fat, it doesn't directly measure body fat. As a result, certain individuals — for example, athletes — may have a BMI that identifies them as overweight, even though they do not have excess body fat.

The issue also has an economic effect. A study by Cornell University found that obesity accounts for almost 21% of U.S. health care costs — more than twice the estimates from previous studies. Other studies have found that obesity means higher costs for employers in Workers' Compensation and absenteeism costs.

Not surprisingly, the impact is also being felt in the workplace in other ways. The Equal Employment Opportunity Commission (EEOC) states that weight discrimination has become almost as common as discrimination relating to race, gender or age. If an employer engages in hiring and firing practices based on a person's weight, it could be held liable under the Americans with Disabilities Act (ADA).

However, the mere fact that an employee is obese does not automatically afford protection under the law. The EEOC generally maintains that the ADA covers only "morbid obesity" (defined as body weight more than 100% over the norm) or obesity caused by a physiological disorder (see below).

Of course, employees may file claims against employers, even if they don't measure up under the EEOC guidelines. In the past, lawsuits alleging weight discrimination have been initiated in the following situations:

• Employees have medical conditions relating to weight such as diabetes, heart disease or hypertension. In these cases, the employee may be protected by the ADA, regardless of the degree of the condition or the cause of the obesity.
• A company imposes a weight standard based on an employee's gender. In a landmark case, the court ruled that an airline's weight-limit requirement was discriminatory because the maximum weights for females were lower than the maximum weights allowed for males (Frank v. United Airlines, Inc., 9th Cir., No. 98-15638, 2000).
• An employer uses assumptions or stereotypes to make decisions. Although the ADA excludes individuals who pose a direct threat to the health or safety of themselves (or others), don't assume a threat exists for obese, or even morbidly obese, people. Based on medical evidence, an employer must establish that there is a significant risk that substantial harm could occur if the employee were to carry out the essential functions of the job.

How Is Obesity Defined?

Obesity is the term used for a range of weight that is greater than what is generally considered healthy for a particular height. It also identifies the ranges of weight that have been shown to increase the likelihood of certain diseases and other health problems.

For adults, obesity ranges are determined by using weight and height to calculate the "body mass index" (BMI). The range distinguishes someone who is obese from an individual who is overweight.

See the chart below for an example.

What Employers Can Do to Help

An employer may want to, or feel a responsibility to, help reverse the trends stated above. One idea is to institute a weight reduction program while encouraging a healthier environment at work. For example, your business might stock vending machines with nutritious snacks and bottled water instead of carbonated soda and candy. You can also include nutritional information with cafeteria selections and set out healthy snacks such as fruit and low-fat yogurt rather than doughnuts or pastries at meetings and other employee events.

Here are some other suggestions:

• Discourage eating at desks. A walk to the cafeteria or lunchroom can be helpful.
• Support physical activity breaks during the workday.
• Encourage staff to use stairs by placing signs near elevators and stairwells highlighting the benefits. Ensure that stairways are accessible and are properly lighted.
• Encourage employees to take walks outside during their lunch hours.
• Sponsor contests rewarding those who lose a certain amount of weight during a specific time period.
• Set up a workplace wellness program to assist employees in adopting healthy lifestyles.
• Provide educational material on the health risks of being overweight and how to eat healthier. Your company's health plan provider can help with this and other health-education material.
• Provide employee assistance programs for private counseling or community-based weight management programs.

In all cases, be sensitive to employees when addressing issues related to their weight. Showing that you care enough to provide a healthy working environment can engender a strong sense of loyalty among your staff.