Benefits & Compensation News

Weight-based firing policy allowed to stand! Here’s why – and the HR ramifications

Two things growing in this country that have employers very worried: employees’ waistlines and healthcare costs. So this begs the question: Can you fire an employee for gaining weight in an attempt to reduce health insurance costs?

The answer: It appears you can — but you must tread lightly.

Currently, there are no federal laws prohibiting employers from discriminating against overweight people when it comes to making hiring and firing decisions. And only one state (Michigan) and a few cities (Santa Cruz, CA; Madison, WI; and Binghampton, NY) have such laws in place.

But there’s been no legal precedent set when it comes to the specific question above.

What we do know

What has happened is the Atlantic County Superior Court recently upheld Borgata Hotel Casino & Spa’s policy to terminate any “Borgata Babe” whose body weight increased 7% over their initial weight when they were hired.

While this case had nothing to do with healthcare costs, it provides a potential road map employers can use to implement a policy that could lead to the termination of employees who gain excess weight.

‘Babes’ knew what they were getting into

The application to be a Borgata Babe stated that the positions were “part fashion model, part beverage server, part charming host and hostess.”

And before accepting their positions the “Babes” signed statements agreeing to keep their body weight within 7% of their initial weigh-in.

As a result, the court threw out the argument presented by 22 Borgata Babe cocktail waitresses that the casino was discriminating against them based on their weight.

The judge said the application process and 7% weight-gain policy clearly explained what the women were getting into, and he said he couldn’t find any law that barred the casino’s policy. Case closed.

Does the ADA come into play?

Employers with similar weight-based policies need to at least ask themselves this question before making an employment decision based on someone’s weight: Does the employee’s condition qualify as a “disability” under the Americans with Disabilities Act (ADA) that requires an accommodation?

In the case of the Borgata Babes, the answer appears to be “no.” Because they were not “substantially limited” by their condition — and their condition wasn’t triggered by or causing a substantially limiting condition — they were not protected under the ADA.

But a new lawsuit brought under the ADA could change the weight-discrimination playing field.

Joeseph Whittaker just filed a weight-discrimination lawsuit against his former employer America’s Car-Mart, a car dealership. It marks the first suit of its kind since the American Medical Association (AMA) announced its position that obesity qualifies as a disease.

Although the AMA’s announcement has no legal bearing on laws like the ADA, experts fear the AMA’s declaration of obesity as a disease could bring an avalanche of lawsuits alleging weight discrimination.

And the more cases there are like Whittaker’s that hit the courts, the more likely it becomes the EEOC will act — perhaps by officially declaring obesity a disability for which employers need to enter the “interactive process,” requiring them to determine if a worker suffering from the condition can perform the essential functions of his or her job with or without an accommodation.

Currently under the ADA, the EEOC only regards “morbid obesity” (weighing twice the normal body weight) as a disability for which an employer needs to enter the interactive process.

Safest bet: Ignore weight

Of course there’s a reason weight discrimination hasn’t yet created a hotbed of legal activity: Illegal or not, it would be easy to spot — and it would kill recruiting and retention efforts.

So the safest bet is to ignore workers’ weight altogether — unless it could prevent an employee from performing the essential functions of his or her job. Then it becomes an ADA issue for which you’d have to enter the interactive process.

And if obesity is a concern as far as your company health plan is concerned, it may be more beneficial to throw additional resources at wellness initiatives that encourage weight loss and healthy eating than trying to punish those whom you’d consider overweight. It’s much less likely to create legal, morale and recruiting/retention problems.

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  • nacht^

    An interesting question is whether it would matter if the cause of their weight gain was pregnancy. Would they be able to fire them the same as everyone else, or would they be required to allow them to return after they give birth to avoid violating the Pregnancy Discriminaton Act?