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Weight, weight, don't tell me - by Heather Bussing - HRExaminer

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

by Heather Bussing

Back in 2012 Steve Smith asked: Is Weight Discrimination OKTom 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 walk in clinics 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.

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