by Jada Wittow
Citizens Medical Center, located in Victoria, TX, enacted a policy about a year ago banning applicants with a BMI over 35. BMI stands for Body Mass Index, and is calculated solely based on a person’s height and weight. The policy states that an employee’s physique “’should fit with a representational image or specific mental projection of the job of a health care professional,’ including an appearance ‘free from distraction’ for hospital patients. The hospitals policy compares appearance and being overweight to disqualifying characteristics such as visible tattoos or piercings. They will not fire current obese employees hired before the policy was enacted.
An issue with using BMI to measure obesity is that it provides a very limited picture. Professional athletes or heavily muscled people often have very high BMI’s, but are not obese or overweight. An athlete could have a high BMI, but a very low body fat percentage.
The hospitals policy is not illegal because weight is not covered under the employment discrimination guidelines of Texas. Texas laws only ban discrimination based on age, race, or religion. Michigan is the only state that specifically forbids weight discrimination in hiring practices. Six cities, including Washington DC, San Francisco, CA, Madison, WI, Santa Cruz, CA, Birmingham, NY, and Urbana, IL, also have some type of protection against weight discrimination.
The Americans with Disabilities Act (ADA), passed in 1990, prohibits employers from discriminating against qualified individuals based on disabilities. A disability is defined as a “physical or mental impairment that substantially limits one or more major life activities.” In 2008, amendments to the ADA were passed, widening the definition of what could be classified as a disability. Since the amendments, a few state and federal courts have addressed weight discrimination charges, but not many. A U.S. District Court in Florida gathered cases from all over the country regarding obesity discrimination and stated “courts have uniformly held that obesity is not a qualifying impairment, or disability, unless it is shown to be the result of a physiological disorder.” (See ADA amendment article page 8)
The Equal Employment Opportunity Commission is the federal agency responsible for enforcing anti-discrimination laws in the workplace. Complaints can be filed with the EEOC against employers, and investigators will look into the charge. The EEOC is responsible for the enforcement of parts of the ADA and all other statutes regarding employment discrimination. The interpretive guidance provided by EEOC stated “Title I of the ADA provided that “except in rare circumstances, obesity [was] not considered a disabling impairment.” (See ADA amendments article)
Rebecca Puhl, Ph.D., Director of Research at the Rudd Center for Food Policy & Obesity at Yale University stated that over the past ten years, weight discrimination has seen a large increase. She said compared to other forms of discrimination, it was the third most common the women reported and the fourth most common for men. A Yale University Study found that weight discrimination occurs in interpersonal relationships and employment just as often as race discrimination. Some studies have found an economic penalty associated with obesity: Obese women earn up to 6% less than their thinner counterparts for the exact same job, men up to 3% less.
There is one method of legal workplace discrimination, known as a Bona Fide Occupational Qualifications (BFOQ). A BFOQ is a qualification for employment that is allowed to be considered during hiring and retaining of employees. These qualifications must be related to an essential job duty, and necessary for the particular place of employment. An example of this is mandatory ages of retirement for airplane pilots for safety reasons, and age caps for the hiring of police officers. Employers must prove that the requirements are necessary for the success of their business or the job before they can claim a BFOQ.
Workplace discrimination is an issue that has come up again and again, first seen a lot in the mid 1960s with regards to gender and race in particular. The most recent anti-discrimination law is the Genetic Information Nondiscrimination Act of 2008, which prevents discrimination based on genetic information of an applicant or employee. Obesity is rapidly becoming an epidemic in the U.S., today, over 30% of adults are considered obese. There have been a few cases of employees who sued their employers for weight discrimination, but a precedent has not yet been established for what the boundaries or regulations of this are. It is likely an issue that will continue to come up until national policies and regulations are enacted regarding weight.
For more on BOFQ, go here
Read about the EEOC and what they do
Article about the ADA amendments
Check out our entries about important Supreme Court cases