New Workplace Legal Worry: Obesity

03/06/07

Fat has muscled aside tobacco as the leading cause of death in the U.S., according to Dr. Julie Gerberding, director of the Centers for Disease Control and Prevention (CDC). CDC statistics state that 65 percent of U.S. adults are overweight, with 44 million classified “obese” and thus facing serious health risks. Gerberding recently summed up the problem of obesity this way: “It is a catastrophe.”

Not surprisingly, problems associated with obesity have spread into the workplace. A new survey by the Employment Law Alliance (ELA) shows that about half of those polled said that overweight workers suffer discrimination in the workplace, and nearly a third feel the overweight are “less likely to be respected and taken seriously.”

Attorney Mary Petersen, a partner with Miller Nash in Seattle, says there are currently “no federal laws that make one’s size in and of itself a protected category. But it would not surprise me if we see an increase in efforts to have obesity classified or characterized as a disability or protected category.” Indeed, 31 percent of the respondents in the ELA poll felt it was time for the government to step in to protect the overweight from discrimination.

The ADA’s Big Tent
Only a few localities (like the City of San Francisco) have laws that explicitly protect workers from discrimination on the basis of weight. So does that mean you have a green light to discriminate against or even harass an obese person? Hardly.

For one thing, the Americans with Disabilities Act can come into play when a person’s obesity is the root cause of a disabling medical condition such as diabetes. Petersen also points out that the ADA and many state laws protect employees who are “regarded as” being disabled. “Sometimes managers or coworkers will look at an obese employee and assume that he or she can’t do certain kinds of jobs — such as those that require a lot of walking around during the day. But by assuming a person can’t do a job because he or she is overweight, you may be giving that person protection under the ADA.”

To avoid legal problems, managers and supervisors must avoid stereotyping workers. “Instead of assuming what a person can or can’t do,” Petersen advises, “ask, ‘Are you able to do this particular job or function?’ ”

Stop Outright Harassment and Discrimination
Employees in some workplaces may feel free to ridicule or otherwise harass obese coworkers. Petersen says employers should deal with such harassment exactly as they would harassment based on sex or color. “Most employers already have policies in place that require coworkers to show each other respect or to maintain a professional workplace. Even in the absence of specific laws, employers should take steps to protect the dignity and self-worth of all employees.” If necessary, educate employees by providing sensitivity training.

Beware, too, of subtler discrimination. In Petersen’s view, employers can find themselves in legal hot water when they make a decision about an employee or applicant based solely on the individual’s weight, unless weight is a bona fide occupational qualification. “Even if being obese is not protected under state, local, or federal law, a decision made on the basis of weight alone could cause an individual to seek legal relief. And if the case should survive a motion to dismiss, it’ll be tried before a jury.” Juries don’t like discrimination in any form — and they love to stick it to employers. “Even if you win the case, it will be terribly disruptive and expensive.”

To avoid that fate, train managers to evaluate a person for a job, training, or a promotion based on experience, skills, and abilities alone and not on appearance. Further, adds Petersen, “They should know never to make derogatory remarks directly related to a person’s weight.”

Be Proactive in Promoting Wellness
Petersen also advocates wellness programs for dealing with obesity at work. An effective wellness program, she claims, can decrease your medical costs and boost productivity. “Wellness programs encourage exercise and healthier eating, which in turn leads to employees who feel better, get sick less, and are more productive. My clients in the healthcare industry who have sponsored wellness programs have found them to be great morale boosters. People encourage one another and have a lot of fun.”

You also can promote wellness more dramatically, as did the CDC’s Gerberding. She turned off some of the elevators in the CDC’s buildings, forcing employees to climb stairs.

Whatever you do, act now to slim down the workplace. As the ELA’s Stephen J. Hirschfeld says, “Obesity is at crisis proportions in America ... now is the time for education and communication, or increased regulation and litigation won’t be far off.”
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Shape attitudes in the workplace and avoid problems with discrimination by consulting these G.Neil products:
—Peace @ Work: Harassment and Diversity Modules
—MyBiz™ Employee Handbook
—ADA Fact Sheet
—Harassment/Discrimination Fact Sheet