Three weeks ago, the Washington State Supreme Court ruled that it is illegal under state law to refuse to hire an obese individual if they are otherwise qualified for a job when it defined obesity as a disability under state law.
The court ruled that the state's definition of disability in the Washington State Law Against Discrimination included individuals with obesity, offering a significantly broader scope than federal disability law. Weight is not listed as a protected category under Title VII of the federal Civil Rights Act and federal courts have not considered obesity a disability under the Americans with Disabilities Act (ADA) unless it is the result of an underlying physiological disorder or condition.
There are few laws that directly address obesity discrimination. Michigan has a state law that explicitly protects against discrimination in employment on the basis of weight. A few cities, including San Francisco and Washington, D.C., have similar ordinances, prohibiting discrimination based on weight explicitly or appearance more broadly. Massachusetts lawmakers introduced a bill this year that would make discrimination on the basis of height or weight unlawful.
What could these potential shifts mean in terms of compliance for employers across the country?
A snapshot of the national picture
U.S. federal appeals courts have ruled that obesity in itself is not an impairment under the ADA. Four federal appeals courts, including most recently the 7th Circuit in June, have said that under the Act, there must be an underlying or perceived impairment — a "physiological disorder or condition" — causing a person's obesity for the individual to be considered disabled.
The Washington State Court decision confronted the established classification of obesity, instead preferencing the state's broader disability law. It ruled that under the state law, "the medical evidence [for obesity] shows that it is a 'physiological disorder, or condition' that affects many of the listed body systems" and that "obesity is not merely the status of being overweight, but instead is recognized by the medical community as a 'primary disease.'"
Although the Washington state court redefined its definition of disability, action in the halls of Congress or the federal courts is unlikely, legal experts told HR Dive. "It's pretty well decided, and so I don't see anything legislative-wise that's suggesting there’s a push," Myra Creighton, partner at Fisher Phillips, said. She continued, "first of all, you'd have to change the definition of impairment in the law ... they could've changed it in the 2008 [ADA] Amendments Act. They didn't."
Elizabeth Kristen, director of the Gender Equity & LGBT Rights Program at Legal Aid at Work, also told HR Dive she doubted there would be movement in the federal courts to regard weight as a protected category under Title VII civil rights law given their present composition, and she expressed skepticism that there would be a "legislative fix" at the federal level — "at least not in this Congress," she said.
Dr. Rebecca Puhl, deputy director for the Rudd Center for Food Policy & Obesity at the University of Connecticut, told HR Dive that workplace anti-bullying legislation could be another potential avenue for legal recourse on weight discrimination. California passed one such law in 2014.
Legal experts have also cited the Genetic Information Nondiscrimination Act of 2008 (GINA), which bars workplace discrimination on the basis of a person's genetic history or makeup, as a separate source of protection for obese workers. Speaking to HR Dive, Kristen noted that she's not aware of any weight discrimination court cases having cited GINA, but added that "to the extent it becomes clear that [obesity] has a genetic component," it could provide a potential avenue for future litigation.
Addressing bias in recruiting
Experts cite a number of best practices to minimize potential liability and promote an inclusive workplace to workers of all sizes at the hiring stage and beyond. A common sentiment in HR, which Kristen echoed, is that lawsuits which allege discrimination at the hiring stage are least likely to side with the plaintiff, "because it's the hardest to get evidence and to have enough to go on, other than suspicion."
Some companies have adopted policies that may minimize potential instances of weight-related bias. Blind recruiting, for example, is often cited as a potential solution to improve workplace diversity; it also has the potential to minimize the risk of discrimination against those not protected under Title VII but who face statistically higher rates of bias in the workplace, such as overweight and obese individuals.
Employers in Washington should consult counsel on any use of "physical examinations or medical questionnaires" at the hiring stage, Fisher Phillips attorney Margaret Burnham wrote in a post about the decision. Also, employers should "make sure what [they're] doing is not engaging in a knee-jerk reaction of, this person can't do this job because of their weight," Creighton said. Employers in Washington and elsewhere should have "a really good notion of what the job description is and if it's safety-sensitive, why could this person being at this particular weight preclude them from safely performing this job," Creighton said. She cited a field test as one option open to employers.
Bias beyond an offer letter
Advocates also cited a number of measures that employers can take beyond the hiring process to minimize weight-related bias and to accommodate overweight employees in the workplace other than engaging with the interactive process under the ADA for individuals with underlying physiological conditions causing their obesity.
Employers would be well-advised to "include body weight in any kind of workplace diversity training" and to incorporate training for HR professionals on how "weight stigma can factor into decision-making processes," Puhl said. She added that employers should have "workplace policies in place about appropriate language, including things related to race or ethnicity and sexual orientation but also body weight — just getting it on the radar in a way that it's not there."
"I think the most important thing is to not see weight as a personal failing and to not believe that people can change their weight easily and essentially, to start seeing it as an immutable characteristic," Kristen said. For employers to ensure an inclusive workplace, just as what is done for employees with disabilities, "you may need to be thinking in your workplace about accommodations for [overweight] people."