Has weight ever influenced your decision to hire an applicant? If so, was it illegal?

A recent BLR poll asked, “Has someone's weight ever influenced your decision on whether to hire him or her?”

Forty-five percent of the respondents admitted to discriminating—either consciously or subconsciously—against an applicant due to their weight.

Here are the responses:

Does this form of discrimination put employers in danger? While there is no federal law that explicitly bans weight discrimination, HR professionals should be careful.

Legal Issues Surrounding Weight Discrimination

The Equal Employment Opportunity Commission (EEOC) guidelines point out that while obesity is not an impairment under the Americans with Disabilities Act (ADA), severe obesity (body weight more than 100% over the norm) is “clearly an impairment.”

The guidelines note that a person with obesity may have an “underlying or resultant physiological disorder, such as hypertension or a thyroid disorder” that may be a protected disability under the ADA.

Case Puts Weight Discrimination in the Spotlight

A federal district court recently ruled that severe obesity is, in and of itself, a disability, regardless of its underlying cause.

Background. In 2010, the EEOC filed a lawsuit against a nonprofit social services agency “for firing an employee because of her obesity, claiming the termination was a violation of the ADA.”

The agency alleged that, as a result of her obesity, her employer perceived her as being substantially limited in a number of major life activities. However, the EEOC said her weight did not prevent her from carrying out the essential functions of her job—caring for the young children of mothers undergoing treatment for addiction.

Ruling. In December 2011, a federal district court in Louisiana denied summary judgment, ruling in favor of the former employee, now deceased.

The district judge referenced the EEOC’s guidelines:

“A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party's weight is within the normal range. 29 C.F.R. § 1630.2(h). However, if a charging party's weight is outside the normal range-that is, if the charging party is severely obese-there is no explicit requirement that obesity be based on a physiological impairment.

“Therefore, according the EEOC Guidelines to the ADA the appropriate deference, the Court should recognize that severe obesity qualifies as a disability under the ADA and that there is no requirement to prove an underlying physiological basis.”

What Does this Mean for Employers?

In a recent webinar, Kristine Kwong, a partner in the Los Angeles office of Musick, Peeler & Garrett, LLP, advised employers to be careful about weight discrimination.

As societal attitudes change, and as regulators such as the EEOC begin pursuing discrimination claims against employers based on obesity alone, experts say the number of weight bias claims will rise steadily under the expanded federal standards.