We received many great, thoughtful reader comments to our last post on the issue of whether weight discrimination should be prohibited or whether it is OK not to hire obese job applicants.   All sides of the issue seem to have been raised and advocated; when this happens it usually means that the issue is a sensitive one and/or that society may be primed for a change.

Tim Theolecke Jr., an entrepreneur from the Chicago area said on Charles Krugel’s Labor & Employment Law & Human Resources Practices Group on LinkedIn (all of these comments are from LinkedIn):  “Tough one. Obese employees miss work more, have more health problems, higher heath costs, more expensive health claims, and, in some roles, are less effective because of their size or reduced mobility. From a purely objective standpoint, if all other things are equal, it would be foolish to take the obese candidate over one who is not.

However, with 36% of the US population classified as obese, and 75% classified as overweight (including obesity) employers may not have the luxury of making that choice.

When it comes to the medical condition issue, it could be a chicken/egg thing too. Also, some minorities have higher obesity rates, and they may squeak too.  Not to hijack the thread, but I wouldn’t hire smokers either. Same reasons.”

Geoffrey Mort, a New York employment lawyer, and frequent contributor to our discussions, noted in Charles Krugel’s group that “It’s difficult not to have reservations about making obese people a protected group. Tim is quite correct in pointing out that obese employees have more health problems and higher health care costs. If one’s obesity is not due to some kind of medical condition, the notion that he or she lacks self-discipline and regard for fitness would seem to be a logical conclusion, at least in a majority of cases. There are significant enough differences between obesity and gender, race or age that I am uncomfortable with making it unlawful to decline to employ someone because of the individual’s obesity. That said, this is indeed a tough one.”

Kelly Kolb, a Florida employment attorney, commented on the ACI’s Employment Law Professionals group discussion:  “The comments by the TN in-house mirror the results of several studies, referenced in my July 2012 article on obesity, so they should not be surprising. The risk of maximizing the approach advocated by the TN in-house counsel, however, is that obesity is typically found at higher rates in women, minorities, and those with ADAAA qualifying disabilties (i.e., diabetes, hypertension, heart disease, cancer, depression, etc.). So, a preference for non-obese candidates puts an employer at risk for disparate treatment claims or “regarded as” disabled claims. My piece is at – http://www.fowlerwhite.com/docs/Obesityintheworkplace.pdf

Robert Thomas, an HR executive from the Pittsburgh area, wrote in the discussion in the Labor and Employment Relations Association (LERA) group:  “We cannot influence how tall (or short) we are but can increase or decrease our circumference. I’m not inclined to chase down data, but I’ve a hunch that productivity correlates inversely to weight. Throw in concerns about absenteeism, medical expense and aesthetics, then draw your own conclusions.”

Erica Cordova, an employment law attorney in the Atlanta area, said in the discussion conducted in Employment Practices Risk Management group (EPRM):  “Talk about a slippery slope and assumptions! It seems incredibly risky to suggest that someone lacks “self-discipline” or a “regard for health and fitness” simply because they are overweight or obese. There are so many different factors that can contribute to someone being overweight that have absolutely nothing to do with whether that person has self-discipline or a regard for health and fitness.

People are disciplined with what is important to them. As an employer, your concern should be that your employees exercise self-discipline when it comes to their work. As long as the employee’s height or weight has no impact on the employee’s ability to perform the essential functions of their job, I see no problem with hiring an overweight employee. In fact, some of these overweight employees may work even harder for you in an effort to overcome the stereotype that they are “fat and lazy.”

If, however, you want to look at this issue from the perspective of healthcare costs, then that is a completely different discussion where an employer may have some valid concerns with hiring overweight employees.”

Mark Goracy, an insurance consultant from the Philadelphia area, noted in the EPRM group:  “Soon obese folk may be a “protected class” and the rest of us will be paying increased health insurance premiums under the ACA to pay for various procedures such as lap banding which will be viewed under the Law as a Right for all overweight citizens. We know that certain healthcare professionals, government functionaries and philospher kings already believe that being overweight is “bad” for health and economic reasons so it is only a matter of time before government mandates make being overweight a “sickness” that needs government oversight.”

Catherine Zacaharias, an insurance claims executive from the Cincinnati area, said on EPRM:  “I wouldn’t be surprised if  we may start seeing a surcharge on health insurance premiums for obesity, just like we currently see for tobacco use where I work.  On the flip side, we also offer incentives for tobacco cessation as well as 100% funding for the programs to terminate tobacco use.”

Erica respionded to Catherine:  “Catherine, I like this approach. If you are going to penalize someone for non-work related behavior, it is always nice to offer some incentives to avoid being penalized. Hence, the growing popularity of wellness programs.”

Finally, Jason Shinn, a Detroit area attorney wrote (on EPRM):

“Under Michigan law, height and weight discrimination is already restricted. In my experience (going back to 2001), it is not a heavily litigated area. In fact the highest profile cases of this sort of discrimination has involved the restaurant chain Hooters.

In regards to the assumption that weight reflects on one’s self-discipline, I would not agree with such a blanket statement. For example, my mother has struggled with her weight for as long as I can remember, despite being an active walker and maintaining a decent diet. I (thankfully) got my dad’s genes and have always had an easy time of maintaining a healthy weight, regardless of my diet.  Having said that, I am committed to physical fitness and (especially in the last few years) I’ve significantly improve my diet. I do like the comments suggesting that organizations can promote a positive culture for their employees by implementing smart wellness plans.”