Written by: Greta Ravitsky 

A Texas hospital has recently been the subject of much media coverage due to its controversial hiring policy that bars overweight applications from consideration.  Per the hiring policy, which was instituted last year at the Citizens Medical Center in Victoria, the hospital would only consider potential employees with a body mass index of less than 35.  This equates to roughly 210 pounds for someone who is 5’5” tall or 245 pounds for someone 5’10.”  In an interview with the Texas Tribune, the hospital’s CEO defended this policy as catering to its patients, and stated “We have the ability as an employer to characterize our process and to have a policy that says what’s best for our business and for our patients.”

Certainly, healthcare entities, wishing to promote an image of health, may exercise their discretion in selecting employees that best reflect that image.  Moreover, as statistics reflect that overweight employees miss significantly more days of work and incur more healthcare costs than their thinner counterparts, employers concerned about the rising costs associated with obesity in the workplace may consider such an exclusionary policy to be a sound business practice. However, does such systematic exclusion of a significant segment of our population constitute illegal discrimination?

In Texas, as in most states, such practice is legal.  No employment laws, with the exception of one state law (Michigan) (PDF) , and six cities, specifically prohibit weight discrimination.  However, obesity may fall under the protection of the Americans with Disabilities Act (“ADA”).  The Equal Employment Opportunity Commission (“EEOC”), the federal agency responsible for enforcing the ADA, has taken the position that the ADA covers morbid obesity and obesity caused by a physiological disorder.  In fact, in September 2010, the EEOC sued a non-profit organization in New Orleans claiming that it had fired an obese employee, in violation of the ADA.

 Whether or not obesity is a protected characteristic, actionable discrimination may occur under the following circumstances:

  •  Men and Women Are Subject to Different Weight Standards: Overweight women are twice as likely to face discrimination than overweight men, and discrimination begins earlier in women’s weight gain.
  •  Health Condition Related to Weight: Regardless of the degree or cause of obesity, health conditions, such as hypertension, diabetes, and heart disease may be substantially limiting impairments affording the employee ADA protection.
  • Assumptions and Stereotypes: An employer eager to avail itself of the ADA’s exclusion of individuals who pose a direct threat to the health and safety of themselves or others, cannot simply assume that a threat exists due to an employee’s excessive weight.  It must be established that there is a significant risk that substantial harm could indeed occur if the employee were to carry out the essential functions of his/her job.

In sum, while claims of employment discrimination based solely on weight may not fare well in the courts, actionable discrimination may take place in conjunction with weight discrimination exposing an employer to greater liability. Moreover, undertaking a policy or practice of barring candidates for employment on the basis of their weight may expose employers to negative publicity and cause unrest among the existing workforce. Employers who are legitimately concerned about the rising costs associated with obesity in the workplace, but who wish to avoid discriminating against this segment of the population, may consider promoting health in the workplace by implementing a wellness program, encouraging healthy eating, providing access to fitness facilities at a discount, as well as other activities that may be of interest to its employees.