The Heavy Issue: Weight and Discrimination

Is Weight Discrimination OK?

Last modified on 2012-04-11 10:58:28 GMT. 8 comments. Top.

Steve Smith, HRExaminer Editorial Advisory Board Member

Steve leads content development, thought leadership and public relations activities as a partner at Starr Tincup. Steve received his B.A. in American Studies from the University of Texas at Austin. Since 2001, Steve has specialized exclusively in human resources and human capital-focused communications consulting after nearly a decade as a newspaper journalist. He has earned numerous awards for his business writing and his blogging and believes that most of life is just showing up and not being a jerk. Full Bio…

Is Weight Discrimination OK?

by Steve Smith

HR, I’m having a hard time with something. As a business owner, I depend on you for advice that helps me run my business and contributes to the bottom line. You’re my partner in building a better, stronger company, right? So here’s what I’m wondering: When is it OK to discriminate in the hiring process?

Now, pick yourself up off the floor. I know this sounds weird. I also know that there’s this thing called the EEOC. Discrimination is not cool. I get it. But it happens. Sometimes it’s even OK. Where is the line? That’s what I want to know.

My question was prompted by a news story about Citizens Medical Center in my own home state of Texas refusing to hire anyone with a Body Mass Index (BMI) over 35. To be fair, Citizens Medical Center is only the latest of many heathcare organizations that have adopted similar policies. It seems logical – obesity is a significant risk factor for lots of really horrible (and, by the way, expensive) medical conditions. As an employer who takes good health seriously, shouldn’t a healthcare provider adopt policies that sets a good example for patients and expresses healthy values? Discrimination’s OK in that case, right?

Don’t get the wrong idea. I’m fat. According to those BMI calculators, I’m actually obese. I prefer the term “Falstaffian,” but let’s face it, fat is fat. Should that matter to hiring managers? And is it OK for hospitals but not for other employers?

What do you think, HR?

I’m kind of on the side of fat people. You know, solidarity and all. I mean, don’t we fat people have a hard enough time? I mean, companies are already OK paying fat people less money. So, give us a break. Please. Besides, the unemployed already have enough to worry about not being hired for being unemployed without having to worry about their weight, too?  And I’d hate to have to fire myself.

Maybe hospitals and medical providers have a point. After all, lots of healthcare employers are OK  not hiring smokers. That seems reasonable; tobacco use is a risk factor for lots of nasty health conditions. All those smoke breaks kill productivity. Smokers are more expensive to cover. But, as a former smoker, I’ve learned that if you really want to know what’s going on in a company, hang out with the smokers. Besides, those folks are fun as hell. But HR – this is your call. Seriously.

However, one area of hiring discrimination where I really have to draw the line is attractive people. Oddly enough, attractive women face some significant hiring discrimination. This is one protected class that I wish I could hang with, but, alas, I’m with the fatties and wishing I could shoot the breeze with the smokers. In other words, I’m hanging with the unemployed.

So do me a favor HR – tell me where the lines of discrimination should be drawn. And your list had better include clowns. I mean, I hate them with their big red noses, their oversized shoes and how 32 of them can cram into a tiny little car. It’s really an abomination. You’re with me on this, right?

Weight, Weight, Don’t Tell Me

Last modified on 2012-04-27 23:23:41 GMT. 1 comment. Top.

While being arbitrary is legal, it is often a cover for illegal discrimination.

by Heather Bussing

Yesterday Steve Smith asked: Is Weight Discrimination OK?  Tom Bolt also had some very insightful comments on the post, pointing out that whether someone is fit to work based on weight is really  a determination between the individual and his doctor.

The question came up because the Citizen’s Medical Center in Victoria Texas has a policy against hiring people whose Body Mass Index (BMI) is higher than 35. The Texas Tribune reports the policy requires an employee’s physique “should fit with a representational image or specific mental projection of the job of a healthcare professional,” including an appearance “free from distraction” for hospital patients.

“The majority of our patients are over 65, and they have expectations that cannot be ignored in terms of personal appearance,” hospital chief executive David Brown said in an interview.

So older people like thinner nurses? And what exactly is an “image or mental projection” of a healthcare professional?

Hiring Requirements Have to Be Based on a Legitimate Job Requirement

Generally, a restriction on who gets hired has to be based on a legitimate business reason. This allows employers to only consider people who are qualified to do the job while deterring arbitrary and discriminatory decisions. While being arbitrary is legal, it is often a cover for illegal discrimination.

But you can discriminate if you have a legitimate business reason. It’s the BFOQ defense– Bona Fide Occupational Qualification. So even if a hiring policy discriminates, it will be legal if the employer can prove that the requirement is necessary to do the job. (In ADA cases, you ask whether the person can do the job with reasonable accommodation.)

For example, back in the 70’s, fire and police departments gave written and physical tests to qualify for the job. The written tests excluded minorities. And the physical tests excluded women. So the courts looked closely at whether the tests actually showed a correlation to someone’s ability to perform the real job.

One requirement for the firefighters was that you had to be able to lift and carry someone over your shoulders for a certain distance. This ability was needed because firefighters save people from burning buildings. Okay. That seems legitimate. Except that firefighters rarely lift and carry someone out of a building because the chance of injury is higher for everyone involved. The true requirement was to be able to drag someone out of a building.  And that meant that more women could pass the physical test.

Showing that a requirement about appearance is a legitimate job qualification is even harder. Flight attendants have a long history of dealing with appearance and gender stereotypes. In the 50’s and 60’s airlines required that female flight attendants be single, but male flight attendants could be married.  After Title VII was enacted in 1964, the courts found this was gender discrimination. So for awhile, some airlines just required that all flight attendants be unmarried. Then most hired only women.

In 1971, male flight attendants filed a gender discrimination suit claiming the airlines had a formal or informal policy of only hiring women. The airlines claimed that gender was a BFOQ because of historical experience, customer preferences, and psychological evidence that passengers were calmer with women. The guys eventually won because well, men are just as good at being flight attendants as women.

The next move by the airlines was to give preference in hiring, promotion, and pay to people based on weight restrictions. It takes more fuel and wider aisles to have heavier (i.e. male and larger women) flight attendants. The courts have grappled with this issue with mixed results.  When the airline could show the requirement related to safety or physical ability to perform the job requirements in small spaces, the airlines won.  In cases where only women were subject to weight monitoring, the airlines lost.

But some courts found that flight attendants’ appearance was a legitimate job qualification.

Several years ago two women sued Hooters for firing them based on weight. Phil Miles has an entertaining discussion of the case here.  Hooters’ defense was that their entire business model was based on how the waitresses looked in the small, extra-small or extra, extra-small uniforms.  The case was brought in Michigan where weight discrimination is illegal. After the court found the waitresses at least had a good argument on weight discrimination, the case moved from the courts into private arbitration. So I don’t know how it came out.

Appearance requirements are tricky because even though appearance based discrimination is not technically illegal, it’s really difficult to justify when the rules on appearance also discriminate based on protected factors.  So if you had a bakery called Blondie’s and only hired blonde workers, you would probably face charges for race and potentially age discrimination.  But if your bakery was called Nonnas and you required everyone to have gray hair, you might be able to pull it off since everyone’s hair turns gray eventually and there wouldn’t be any issue of age discrimination.

Laws Against Weight Discrimination

There are no federal laws that specifically make it illegal to discriminate based on weight or appearance. But other laws such as Title VII, the ADA or GINA may protect against weight discrimination.

Michigan is the only state that protects against weight discrimination. Nevada has introduced a bill that would include weight as a protected category. Although I would expect significant opposition from the casinos.

Seven cities also protect against forms of appearance discrimination including height and weight: Washington DC, San Francisco and Santa Cruz, CA, Binghampton NY, Urbana IL, and Madison WI.

Weight Discrimination Can Be Illegal, Even in Texas.

Texas does not have a law that protects against weight discrimination, even though everything’s bigger in Texas.

I’m not sure how the hospital could justify having a certain BMI as a legitimate requirement for providing health care. Lots of overweight doctors, nurses, radiologists, and anesthesiologists do a great job every day.  And the truth is, people who are sick enough to be in a hospital don’t really care what their doctor or nurse looks like as long as they know what their doing and don’t hurt too much.  I don’t buy the “our workers should be thin because our patients like it and it’s good for our image” justification.

But even if their reason for the requirement is complete nonsense, the rule also has to discriminate based on a protected factor before it becomes illegal.

62% of women age 20-74 are overweight. About half of those are obese. 60% of overweight women and 40% of overweight men say they have been discriminated against.  And there are repeated studies that show overweight people make less money.  See Alexandra Griffin’s Women and Weight-Based Employment Discrimination.

So there is an argument that weight based job requirements have a discriminatory impact on women.  There may be similar arguments based on race if statistics show that people of certain races are heavier than than others.

Discrimination based on weight cases have also been brought under the ADA.  To make an ADA weight claim you have to show that your weight  substantially limits at least one major life activity, or that your weight is regarded as limiting major life activities. The courts have been more willing to consider weight as a disability when there is evidence of an “underlying physiological disorder” or is “severe obesity.”  In addition, the ADA regulations say “temporary, non-chronic impairments of short duration . . . are usually not disabilities. . . .(E)xcept in rare circumstances, obesity is not considered a disabling impairment.” (29 C.F.F 1630.)  For a great discussion of weight based ADA cases see Jennifer Staman‘s Congressional Research Report: Obesity Discrimination and the Americans with Disabilities Act.

If being overweight is connected to a genetic condition, then GINA, the Genetic Information Nondiscrimination Act would apply. GINA prohibits discrimination in employment or by health insurers based on genetic information or a genetic predisposition to developing disease in the future. Often the justification for weight discrimination is that heavier people require more medical care, and their medical treatment is more expensive.  But since we can’t control our genes, employers can’t discriminate if the weight condition is genetic.

This, of course, leads to the question of how potential employers can find out if someone’s BMI or whether their weight condition is related to some underlying genetic or medical condition. Under HIPAA  and in states with broader privacy protections, asking for this information as part of the interview process can be a privacy violation as well.

I believe that as we learn more about weight as a genuine medical condition rather than a personal weakness, courts will find more cases of weight discrimination, and more laws will be passed protecting against appearance based discrimination.

As for Citizen’s Medical Center, their obsession with employees’ weight and appearance    just makes them look shallow and uncaring. And maybe that’s not the best message for a business in charge caring for others.

What’s critical?

Last modified on 2012-04-09 13:34:29 GMT. 0 comments. Top.

Neil McCormick Founding Member HRExaminer Editorial Advisory Board

Neil McCormick returns this week to the HRExaminer Editorial Advisory Board from Australia. Neil has worked in human resources and consulting services for the past 16 years building a repertoire covering human resource management, recruitment consulting, management consulting, talent management, general management and learning and development. He currently serves as General Manager for Talent2, Asia-Pac’s largest HR consultancy. Full Bio »

What’s critical?

by Neil McCormick

In my previous articles (see links below), we discussed Workforce Strategy and the importance of rigor in assessment of human resource activity and the framework of Input, Process, Output and Outcome.  In this article we will discuss the importance of understanding what is critical in terms of delivering these nominated Outcomes.

In discussing criticality let me start with a story from a consulting assignment I undertook several years ago. I was asked to review a particular organization’s HR structure and focus. As background, things weren’t going too well for the HR Department. The team was under pressure to deliver many critical activities for a burgeoning company. The busier they got, the more they fell behind, even though they were constantly adding resources.

We realized they did not have a consistent, agreed understanding of what was critical. In one department there were almost as many interpretations of critical as there were managers. In attraction and recruitment requirements, one manager thought it was critical to fill any open position. Another thought that it meant any senior position left unfilled for more than 6 weeks. Another manager thought whatever he urgently needed from HR was critical, and used the term to get their attention. Inconsistency priorities meant there was lots of activity that didn’t necessarily impact the Outcome the organization needed to achieve.

All of these supposedly “critical” requirements simply reduced the ability of the HR department to focus on the more significant issues. It is very easy, in situations like this, to fall into reactionary mode and become the best crisis manager you can, for as long as you can.

I’m sure some of you are saying this is just common sense. There’s nothing new here! And, you are correct! The problem is that common sense isn’t necessarily that common. It is very easy to fall into the activity trap of reactively managing situations.

Here’s a little task for those of you who are interested. Why not conduct a brief review within your own organization? Ask your managers how they determine what, from a HR perspective, is critical. Also, take note of how many of these answers focused on the targeted organizational Outcome in the first instance.  You may be surprised at the results.

Most organizations I deal with are under budget pressure. Competition is increasing, revenue and margins are under pressure, and expenditures are shrinking. Both Government and commercial departments are under pressure to continually do more with less.

To figure out what is critical, focus on the key elements that will drive success, manage costs more effectively, and achieve Outcomes. Criticality means the importance that work, function, role and capability will have on the on-going delivery of the organizational Outcomes.

A brief description of each is as follows:

Work

• What work is required to deliver the Outcome the organization seeks?
• Of this work, what is critical to achieving the result?

Function

• What functions (e.g. Sales, marketing, distribution, manufacturing, research and development, Information Technology etc.) are required to deliver the work?
• From these functions, what is critical to deliver the required critical work?

Role

• What positions are required to support the functions?
• Of these positions, which are critical to supporting the critical functions?

Capability

• What capabilities are required to allow the individuals to perform optimally in these critical roles?
• Which of these capabilities are critical to do so?

As you work through these questions you should also ask how the activity should be undertaken and who should undertake it. Consider the three “e’s” of economy, efficiency and effectiveness.

For instance:

Once we have determined what work is required to be done to achieve the desired Outcome we should then ask: Is it economic, efficient and effective for us to undertake this work ourselves or, should we look at other methods of delivery?

Another example may be the review of our strategy to deliver Capability. Is it economic efficient and effective for us to develop capability internally or, potentially source it externally via recruitment or contracting activities?

By understanding and focusing on what is critical to deliver Outcome, the broader organization becomes far more focused with a clear framework for successfully delivering those targeted Outcomes. While this has the immediate advantage of focusing limited budgets on what is truly critical, it also allows HR departments in particular, to get “ahead of the game” and begin to move from reactive management to strategic development.

If you wish to delve further into this topic see my prior articles in the HR Examiner:

Workforce Strategy 101

What’s the Objective?

The Output’s Connected to the Outcome

Criticality and Workforce Strategy

Also read my latest book Lean but Agile, Rethink Workforce Planning and Gain a True Competitive Edge

Take care all!

Is Social Technology Failing HR?

Last modified on 2012-04-09 16:39:36 GMT. 2 comments. Top.

We live in a world inhabited by evangelists for whom real adoption of their technologies is not enough.

Social Media Spanish Inquisition

There’s a weird dynamic in the conversation that’s supposed to be our marketplace. Its primary symptom is the idea that some technology (social media, video, mobile, take your pick) is failing to be properly absorbed by business. Its primary evangelists are the people with presentations that say, “a lot of you just don’t get it.” Its primary value is to support the Lewis Carrol view of the universe.

Or, as Forrest liked to say, “Stupid is as stupid does.”

Take this segment of a post entitled “Why Social Business Is Failing to Deliver“

If you look into the current business world out there you would see how one of the main reasons why corporations are adopting and embracing this social networking for business movement has always been cutting costs, i.e. optimizing the business with the right resources (apart from generating new business, that is!). That’s basically us, knowledge workers, still being treated as resources, instead of people, and acting accordingly when embracing all of these social technologies.

HR still hasn’t made that transition from Human Resources into Human Relationships, at least, for the vast majority of businesses out there and this means that if Social Business can help them get their business optimize their resources they would be doing so, ignoring the people, and their needs, once again, and like it’s been happening for decades… Just think of it, how many times have we seen plenty of use cases on how beneficial social networking is in helping find the right experts within organizations, or find the right information at the right time, socializing business processes accelerating speed of response, improving customer satisfaction or just simply empowering knowledge workers to become much more effective and productive while getting work done? Far too many times, don’t you think?

Well, right there it is when optimizing the business kicks in, because instead of thriving to become more sustainable businesses where people are treated like people, in a much more trustworthy, responsible and valued perspective altogether, we keep seeing how the business decides to go the other direction and optimizes resources, i.e. continues further along with layoffs or resource actions, or doesn’t hire enough talent just to get by, since the current knowledge workforce keeps on being squeezed out all the way. Have you ever thought about when was it the last time that you worked 40 hours per week, or, basically, the number of hours you were hired for in the first place? Another example, when was it the last time that you were working only on a single project, with a single team, budget, mission scope, goals, etc. etc. Just think of it. Probably not in the last decade or so, if not longer!

- Luis Suarez, Knowledge Manager, Community Builder & Social Computing Evangelist in the IBM Software Group

If I understand it , Suarez is saying that ‘Social Business’ (which he seems to say is returning an ROI) isn’t working because it isn’t doing what he thinks it should. I hardly mean to single Mr. Suarez out of the crowd. Tortured logic and tangled language are the landmarks in our newly democratic workplaces.

It seems to me that something is working when lots of people are using it. So, I get a little curious when I hear that video is a revolutionary technology; that Recruiting has yet to embrace mobile; or, that social technology is failing.

I do not know a single recruiter who doesn’t use a smartphone, social media and video (occasionally) in their work. The degree to which the industry is already changed by these tools can not be overstated. The technology is already in use everywhere you look.

We live in a world inhabited by evangelists for whom real adoption of their technologies is not enough. Like the Spanish Inquisition (No One Expects The Spanish Inquisition), which insisted on an extremely literal form of obedience, belief and usage isn’t enough. The evangelists demand adherence to an unreachable standard. Like Mr. Suarez suggests, it’s not enough to use the tools to achieve business objectives. It’s a failure if it doesn’t deliver Utopia.

In recent months, I’ve witnessed a dozen presentations, delivered to Recruiters who all carried smartphones, about how mobile technology was not being adopted very quickly. Meanwhile, the recruiters in the audience were busy emailing candidates, scheduling interviews, moving qualifications packages and responding to hiring managers on their devices. It’s been a tremendous Through the Looking Glass experience.

If you’ve seen the ‘How Technology Moves Through HR‘ presentation, you’ll understand that this generation of tool is flowing in the front door of the organization. It’s never worked that way before. Perhaps, instead of evangelists preparing the way, the ‘people who used to be the audience’ are going to show us how to use the tools.

Employment Branding Redux

Last modified on 2012-04-09 13:08:14 GMT. 1 comment. Top.

The great thing about the HRExaminer is that it provides a place for a dialog between and about such mutually exclusive potions.

>Over the past several weeks, we’ve been exploring the topic of employment branding. It’s murky territory for some. We’re lucky to have the best minds in the business on our team.

The newest member of our Editorial Advisory Board, Felix Wetzel, is in a position to understand the issues. As the marketing leader at Jobsite, he has developed some of the most interesting company branding campaigns in the history of the industry. Wetzel’s work includes ‘the best advertising investment in history’, a large bet on a British football team. In Wetzel’s execution, he integrated and positioned the Jobsite Brand (rather than simply placing it as has been the case in most job board ad gambits.)

Wetzel knows company branding. He also sells a lot of employment marketing.But, Jobsite has no employment branding product line. Job board ads do not require an employment brand (although many would argue that they are better off with them)

In his piece last week, he said that putting energy into the employment brand was a waste of time; that there was no such thing. Felix precisely describes the world as seen from the eyes of a seller of job advertising who builds his own brand. We were left wondering whether or not Felix’s view is a function of the British employment market where third party agencies do most of the work. Employment brands simply wouldn’t be as useful in that contest.

David Kippen, who led TMP’s employment branding efforts for many years, takes just the opposite view. Kippen articulates a view of the brand as an empty symbol created to hold the projections of the various stakeholders who interact with it. In Kippen’s view, clarity about employment branding can only be achieved when it is clearly (and financially) separate from the employment marketing function.

Kippen’s exploits include the conception and delivery of Marriott’s online game used in employment branding. His position plays well in large multi-national operations where consistency and focus are hard to achieve. Scale requires the level of sophistication and discipline that are Kippen’s concern. As scale decreases, however, it’s inevitable that employment branding, marketing, workforce planning and requirements development all collapse into a single function. Most companies don’t have the resources for disciplined branding in their main business let alone the employment segment.

Kippen comes to the conversation with the perspective of an employment brand builder. By focusing on the design and execution of the brand, Kippen’s teams (at Evviva) use ethnographic methods to make sure that the right audience is targeted. From there, more tactical processes can be laid on the basic brand.

The great thing about the HRExaminer is that it provides a place for a dialog between and about such mutually exclusive potions.

Doug Rushkoff, the contrarian social critic, says that brands have become tools of accountability.

Brand always had two functions. One of its functions was to mask the long-distance industrial-age reality behind a product because people’s personal relationships with producers were being replaced by the plain, brown-box relationship to mass-produced goods. That was one function: to humanize factory products.

The other function of the brand, though, was to create accountability. The difference between a branded product and an unbranded one, was a branded one, you knew who you could go to. They’re there. It’s their way of owning the product, both in the bad kind of way and the good way. We’re standing behind this. So the we’re-standing-behind-this aspect of branding I think still holds.

[But] it’s not about creating a mythology around the way a product was created, so it’s no longer “these were cookies made by elves in a hollow tree.” That’s not the value of the brand. The value of the brand is where did this actually come from? What’s in this cookie? Who made it? Are Malaysian children losing their fingers in the cookie press or is this being made by happy cookie culture people? At that point, all these companies come to people like me saying, “We want to become transparent. We want a transparent communication strategy.” And I’m like “Well, are you proud of what’s going on inside your company? Are you proud enough to pull up the shades and let people see inside?” It’s that easy. 

That captures the lion’s share of the territory where Kippen and Wetzel agree. Social media and other 21st Century communications tools create an environment where the inner workings of the company can become known to anyone with an interest. As the years go on, a company’s reputation becomes the ground on which branding battles are played.

Think back to the article on 9 Employment Branding Buckets. The purest employment branding story can be told when the prospects are new to the industry and the company. The more experienced the player, the more that reputation matters. Sophistication, in the coming years will involve helping prospective employees weave their own narrative through the maze of often conflicting stories about the company. As we leave the industrial era disconnect between product and consumer, reputations and brands will become increasingly intimate

In organizations and humans, reputation is a complex thing to manage. Most of the employment branding efforts I’ve seen trade in overly archetypal pictures of the company culture, creating mythology where the reality s more of a ‘pants on one leg at a time’ sort of thing. Like job descriptions that plead for Mr. Right to come and take the job, employment brands tend to be saccharine and thin veneered.

My view is different than either Kippen or Wetzel. The employment brand is a narrative that accounts for the company’s reputation while delivering the right part of that story to the right audience. Every company has one; they are better when driven by data and an examination of the audience.