WEIGHT DISCRIMINATION AND THE WORKPLACE

Author: Heather Stewart, Senior Editor

Within the last ten years, several hospitals have come under fire for eliminating job applicants for being too overweight.[i] For example, as recently as 2012, the Citizens Medical Center in Texas had a policy requiring that an employee’s physique “should fit with a representational image or specific mental projection of the job of a healthcare professional,” and required potential employees to have a body mass index of less than thirty-five.[ii]

In the United States, it is currently illegal for employers to discriminate against applicants and employees because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy) national origin, age, disability or genetic information.[iii] The Equal Employment Opportunity Commission (EEOC) enforces these laws, and also protects people against retaliation for reporting these types of discrimination.[iv]

The Centers for Disease Control and Prevention (CDC) reports that obesity is a “common, serious, and costly chronic disease of adults and children that continues to increase in the United States.”[v] As recently as March 2020, 41.9 percent of the United States population qualified as obese.[vi] This is a marked increase from the 30.5 percent estimated by the CDC in 2000.[vii] With the world’s increasing focus on genuine issues of discrimination, why have we not made more progress in the realm of weight discrimination?

Obesity is most commonly measured using the body mass index scale.[viii] Body mass index is calculated by using a weight-to-height ratio and is used to define whether a person is overweight, healthy, or underweight.[ix] However, body mass index is not a perfect indicator of health.[x] Body mass index does not directly assess body fat.[xi] Because muscles and bones are denser than fat, athletes and more muscular people may have a higher body mass index that would classify them as obese.[xii] Body mass index can also vary based on other factors such as gender and race,[xiii] and does not reflect the changes in the body that occur with age.[xiv] For instance, women have a tendency to naturally store more body fat than men, even at the same body mass index.[xv] Older people also tend to have more body fat than younger people at the same body mass index.[xvi]

Interestingly, there are no federal laws protecting employees from weight-based workplace discrimination.[xvii] Only Michigan and recently Washington have state laws in place protecting people with obesity, but the issue has been shockingly ignored by the vast majority of state legislatures.[xviii] Circuit courts in the second, sixth, seventh, and eighth circuits have heard cases involving obesity as a disability.[xix] All four have held that severe obesity is not a standalone disability unless the individual has an underlying physiological condition.[xx] The EEOC itself takes the position that obesity should be considered a standalone disability under the ADA.[xxi]

After lengthy litigation, the state of Washington now recognizes obesity as an impairment.[xxii] This was decided in Taylor v. BNSF Railway Company in 2021. In July 2007, Casey Taylor applied to work for BNSF Railway in the position of Electronic Technician.[xxiii] In October of that year, BNSF extended a job offer to Taylor for the position, conditioned upon his passing a medical examination.[xxiv] The medical exam included a physical capacities test, which indicated he had adequate shoulder and knee strength, and a blood pressure test revealing normal results.[xxv] The doctor also evaluated Taylor’s body mass index and found it to be 41.3.[xxvi] BNSF’s medical officer reviewed Taylor’s file and sent Taylor a letter informing him that BNSF was “unable to determine medical qualification [for the job]…due to significant health and safety risks associated with extreme obesity…”[xxvii] The letter offered Taylor the option to submit to additional testing, or alternatively, that he would be considered for the job if he lost ten percent of his body weight and maintained that weight for at least six months.[xxviii] Taylor could not afford the additional testing, and BNSF did not offer to pay for them.[xxix] He was denied the job.[xxx]

Throughout the litigation, BNSF maintained that substantially all individuals with Taylor’s obesity classification could not effectively perform safety-sensitive positions.[xxxi] The court, however, stated that “both medical science and Washington disability law have progressed in the past four decades,” and that even if body mass index requirements used in other cited cases presented a bona fide occupational qualification (such as for a railway fire fighter), that was not immediately analogous to the less physical requirements for a railway Electronic Technician.[xxxii] Most importantly, the Washington court also stated that because of the evolution in science and disability law, obesity is recognized as an impairment under Washington law “in all circumstances.”[xxxiii]

New York is the most recent state to propose an Assembly Bill related to prohibiting weight discrimination.[xxxiv] That bill, A1851A, proposed in the 2021-2022 regular sessions, would make it unlawful for an employer to eliminate job candidates or fire employees because of weight.[xxxv] The proposed bill does acknowledge, however, that where the well-being of an individual or the general public may be threatened or put at risk, weight restrictions would not be unlawfully discriminatory.[xxxvi] This bill is still active in committee,[xxxvii] so it remains to be seen whether New York will be the next state to make obesity a protected class.

With the increasing prevalence of obesity in America today, it may be that more courts will look deeper into the issue of weight discrimination. While the topic certainly presents other issues for consideration, such as at-will employment laws, there must be a way for people with obesity to feel more secure in their employment and while on the hunt for jobs. Perhaps Kentucky and Ohio could step up and help pave the way for the rest of the United States to start taking this important topic seriously.

[i] Emily Ramshaw, At Victoria Hospital, Obese Job Candidates Need Not Apply, TEXAS TRIBUNE (March 26, 2021), https://www.texastribune.org/2012/03/26/victoria-hospital-wont-hire-very-obese-workers/ (last visited Oct. 20, 2022).

[ii] Id.

[iii] Prohibited Employment Policies/Practices, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, https://www.eeoc.gov/prohibited-employment-policiespractices#:~:text=Under%20the%20laws%20enforced%20by,)%2C%20disability%20or%20genetic%20information (last visited Oct. 22, 2022).

[iv] Id.

[v] About Overweight & Obesity, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/obesity/about-obesity/index.html (last updated March 30, 2022).

[vi] Adult Obesity Facts, https://www.cdc.gov/obesity/data/adult.html (last reviewed May 17, 2022).

[vii] Id.

[viii] Hannah Ritchie & Max Roser, Obesity, OUR WORLD IN DATA, https://ourworldindata.org/obesity (last visited Oct. 24, 2022).

[ix] Id.

[x] Id.

[xi] Why Use BMI?, HARVARD SCHOOL OF PUBLIC HEALTH, https://www.hsph.harvard.edu/obesity-prevention-source/obesity-definition/obesity-definition-full-story/ (last visited Oct. 25, 2022).

[xii] Id.

[xiii] A M Nevill & G S Metsios, The need to redefine age- and gender-specific overweight and obese body mass index cutoff points, MEDICAL NEWS TODAY, https://www.medicalnewstoday.com/articles/323543#body-composition.

[xiv] https://www.nature.com/articles/nutd201536 (last visited Oct. 23, 2022).

[xv] Id.

[xvi] Id.

[xvii] Kelly McCall, Current Trends in Combating Weight Discrimination in the Workplace, FISHER PHILLIPS (May 14, 2020), https://www.fisherphillips.com/news-insights/current-trends-in-combating-weight-discrimination-in-the-workplace.html.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Taylor v. BNSF Railway Company, No. C11-1289JLR, slip op at 1 (W.D. WASH. Aug. 27, 2021).

[xxiii] Id.

[xxiv] Id.

[xxv] Id. at 2.

[xxvi] Id.

[xxvii] Id.

[xxviii] Taylor v. BNSF Railway Company, No. C11-1289JLR, slip op at 1 (W.D. WASH. Aug. 27, 2021).

[xxix] Id.at 2.

[xxx] Id. at 3.

[xxxi] Id. at 9.

[xxxii] Id. at 8.

[xxxiii] Id.

[xxxiv] Assemb. B. A1851A, 2021 Leg., Reg. Sess. (N.Y. 2021).

[xxxv] Id.

[xxxvi] Id.

[xxxvii] Id.