Obesity and Hiring

Despite a recent court ruling that finds an obese candidate who was not hired for a machinist job did not qualify for protection under the Americans with Disabilities Act, experts are still warning employers to be careful with their hiring practices so they don't get sued in the first place.

Wednesday, October 26, 2016
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Employers can consider themselves emboldened by a Nebraska court's ruling that an obese job candidate did not qualify for protection under the Americans with Disabilities Act. But, even in light of the good news, experts still say employers should re-examine their hiring practices to ensure they won't be the next ones to be sued for a potentially weight-based discriminatory hiring practice. The real consideration here is whether a candidate's obesity prevents him or her from doing the job in question.

"Obesity is not currently covered under the Americans with Disabilities Act, unless it is due to a medical condition such as lipedema and lymphedema," says Steve Lindner, executive partner of The WorkPlace Group, in Florham Park, N.J. "However, some states, such as Michigan, and some cities across the country do have laws that prohibit discrimination on the basis of height and weight unless related to actual job requirements."

"I don't expect employers to change their practices based on the Melvin Morriss, III vs. BNSF Railway Co. lawsuit case," he adds, "in which BNSF successfully defended its position."

Deanna Arnold, owner of Employers Advantage, an HR-solutions provider in Cornelius, N.C., says the current employment regulations exist to specifically prevent employers from denying people employment or taking adverse action against them "based on things that aren't job-related, and this is another example.""Someone's weight is not a direct reflection on their job skills, or a predictor of success in a role," she says. In this case, however, "he specifically didn't get the job because he didn't pass the required test to be able to safely conduct the work in the role. That is completely different than someone being denied employment because they are obese for something like an accounting or marketing role."

But if obesity was to be considered a disability, would that change things?

Could obesity be considered a disability and, therefore, be impacted by the ADA? No, says Lori K. Long, an author, consultant and an HR professor in the school of business at Baldwin Wallace University in Berea, Ohio. "Obesity is not a disability under the law because it has not been shown to be a physical impairment that substantially limits a major life activity," she says. However, the answer to this seemingly simple question gets a bit murky. "Obesity may be associated with a physical impairment -- like diabetes -- and, if someone has a physical impairment and is substantially limited in a major life activity, [he or she] could be considered disabled under the law," Long says. Even so, she adds, the employee must still be able to perform the essential functions of the position, with or without an accommodation. If the employee can't, the employer is not required to hire him or her.

Charles Krugel, a management side labor and employment lawyer and HR counselor in Chicago, supports this position. "As a general matter, obesity is not an ADA-covered disability," says Krugel. Whether or not it should be, he adds, "is a topic best left to Congress." He points to two key factors that can impact the answer of whether obesity leads to health issues that restrict someone from life's essential activities -- such as employment -- and whether the individual is otherwise qualified to do the job.

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There is no one-size-fits-all answer, he says. Each situation requires independent analysis and evaluation "of a specific job's essential functions and what, if any, accommodations are needed for an ADA-disabled individual to perform those essential job functions." This analysis, he says, "is probably much like what occurred in the Morriss case. It's basically an evaluation of the job's essential functions, responsibilities and requirements in juxtaposition to industry standards, regulations and laws."

It's important, says Long, for employers to have written job descriptions that clearly outline the essential functions of a job before hiring for a position. "Employers should make all applicants follow the same steps in the selection process and only require a medical examination if there is a job-related reason for the medical examination," she says. Such an exam can only be required after an offer has been made, however.

"The old adage 'Don't judge a book by its cover' is good advice when it comes to high-stake employment decisions," says Lindner. "Keep personal biases out of the hiring decision process. Focus instead on candidates' qualifications rather than their weight and height, unless, of course, job requirements otherwise dictate. Employers do have a responsibility to maintain safe work environments and, where height and weight restrictions exist, candidates exceeding those requirements will be denied employment for their own safety."

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