Most employers are aware of their obligations to prevent discrimination and harassment, and to offer reasonable accommodation to employees with disabilities and religious practices. An increasing number of Americans are overweight by medical standards, and the media have emphasized the health risks of obesity in recent times. Employers therefore may have questions about whether obesity is protected by the anti-discrimination laws. While weight in and of itself is not a protected category under state and federal laws, overweight employees indeed may obtain protection from discrimination through federal, state and local laws prohibiting employment discrimination.

Weight and Disability Discrimination

In EEOC v. Watkins Motor Lines, the Sixth Circuit recently decided that morbid obesity itself is not a disability protected by the federal Americans with Disabilities Act of 1990 (“ADA”). The Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with interpreting and enforcing federal anti-discrimination laws and has discretion to represent individuals.

In that case, the company doctor determined that a 400-pound truck driver could not safely perform the requirements of his position because he had a limited range of motion and could only take a few steps without shortness of breath. The EEOC argued that morbid obesity, defined as more than twice normal body weight, was itself a medical condition warranting protection under the ADA. The court determined that the employee failed to establish there was an underlying physiological cause for his obesity. Therefore, he was not protected by the ADA.

Similarly, under the California Supreme Court’s decision in Cassista v Community Foods, Inc., decided in 1993, obesity is protected as a disability only if it is related to a medical condition. In that case, an applicant who was 5-foot-4-inches tall and weighed approximately 305 pounds applied for a job in a natural food store. The position required running the cash register and stocking the shelves, including some moderately heavy lifting.

The applicant was not hired for several vacancies. Eventually, she asked the personnel director why she had not been hired, and received the explanation that the store was concerned about her ability to perform the job because of her weight. After a trial at which the jury decided in favor of the employer, the Court of Appeal reversed the judgment and held that there was uncontroverted evidence the store considered the employee’s weight in making the hiring decision. The Supreme Court in turn reversed the Court of Appeal, noting that the statute defined disability as resulting from a physiological disorder or condition. The court noted, however, that obesity that resulted from thyroid disorders possibly could support a claim for disability discrimination.

Thus, an overweight appearance is not a protected characteristic, such as skin color or sex would be. But because an employer typically does not know the cause of an applicant’s obesity, blanket disqualification of the obese is a risky policy. Medical conditions related to obesity may not be apparent to the naked eye. Because an overweight employee applying for an office or retail position may not need accommodation to perform the job, the employer will have no job-related reason to inquire into whether the employee’s weight is related to a medical condition.

Automatic Disqualification of Employees Based on Perceived Inability

The disability discrimination laws do not prohibit employers from requiring employees to demonstrate they can perform the essential functions of the job, even if those functions are physically demanding. (Of course, many overweight individuals can perform extremely demanding physical tasks.) In all cases, employers should conscientiously ensure their physical requirements are closely related to the essential functions of the job.

Even when an employee’s disability limits his or her ability to perform certain tasks, a recent Ninth Circuit in Bates v. United Parcel Service, Inc. provides a good reminder that fitness evaluations should be “shown to be job-related for the position in question and consistent with business necessity.” In that case, UPS applied a Department of Transportation (“DOT”) regulation for drivers of large commercial vehicles to its package delivery drivers. Because a DOT license is not required to drive a UPS truck, the policy prevented deaf drivers with good driving records from employment as a UPS delivery driver.

By analogy, a policy excluding overweight employees with disabilities, without conducting an individualized inquiry, could prevent some otherwise qualified employees with medical conditions from the job. A medically disabled overweight employee who could perform the essential functions of the job would be protected by the law and must be offered accommodation for the disability.

Weight and Gender Discrimination

Even for overweight employees who are not medically disabled, purely cosmetic hiring requirements can be lead to problems. For example, weight requirements that distinguish between males and females may constitute sex discrimination. In the past, it was standard practice for airlines to hire only women as flight attendants and to require them to be unmarried with no children, to meet weight and appearance criteria, and to retire by the age of 35. Once United Airlines began hiring male flight attendants, the airline adopted weight requirements that required women to be more slender than men. Because the airline was unable to show that female flight attendants had to be thinner than men to perform their duties, the Ninth Circuit in Frank v. United Airlines found the weight requirements to constitute sex discrimination.

The airline used actuarial tables to determine normal weight limits. The airline allowed men to remain under the normal weight for large-framed men, but held women to the weight limits for medium-framed women. The court apparently would have allowed a rule that required all employees to be within one standard or the other under the actuarial table, but found that applying different actuarial tables for men and women was discriminatory. The court found that this criterion was not related to any job requirement, or BFOQ, noting that the airline had historically not applied weight requirements to attendants on flights to Hawaii.

The law allows distinctions between men and women in appearance requirements, so long as the requirements are similar. For example, a permissible dress code could require men to wear ties but not women, but it could not require women to wear uniforms while men are allowed to wear business clothes. The Ninth Circuit, sitting en banc, revisited grooming standards earlier this year in Jespersen v. Harrah’s Operating Co., Inc. There, the court permitted the employer to require employees undergo a makeover with professional image consultants and then dress and make up according to the consultant every day. Men were generally required to have neat hair, clean fingernails, and clean clothes. Women were required to have styled hair, manicured nails, wear make up, and hosiery. Jespersen reaffirmed that men and women could be held to different grooming requirements, so long as they were reasonably equivalent. The plaintiff complained that her dress requirements were much more demanding than those to which men were held, but the court did not find the burden to women excessive. In contrast, Frank concluded that requiring women, but not men, to lose weight, was an unequal burden.

Employers should proceed with caution before adopting appearance standards based on Jespersen, though, in light of the California Supreme Court’s decision in Yanowitz v. L’Oreal USA, Inc. There, an executive at L’Oreal, a cosmetics company, told a manager to replace an employee with someone more “hot.” The court held that it was gender discrimination to require female employees to be äóÖhot’ if men were not held to the same standard. The Court of Appeal, which was affirmed by the Supreme Court, cited Cassista and noted that the Fair Employment and Housing Act does not protect employees on the basis of appearance alone. However, the Court took the executive’s requirement that the employee be äóÖhot’ to mean that she be sexually attractive, presumably, to him. Similarly, undefined or subjective standards for deciding whether employees or applicants are too heavy could easily lead to a Yanowitz complaint that the standard is applied discriminately to one gender over another.

Local Ordinances Banning Appearance Discrimination

Local ordinances in San Francisco and Santa Cruz protect employees from discrimination on the basis of appearance, including weight. Santa Cruz is the home of the natural food store that declined to hire Cassista. These ordinances remain relatively unique in employment law, and have not given rise to any high-profile cases. Unlike age, which can be proven conclusively, or disability, which at least is subject judicial interpretation, beauty is in the eye of the beholder. Therefore, it would be difficult to prove discrimination when competing applicants are reasonably similar. Even so, if unrelated to any job requirement, hiring employees on the basis of weight would probably constitute discrimination in these jurisdictions without proof of disability or sex-based bias.

Conclusion

The next generation of potential employees reportedly includes more overweight teenagers than at any time in history. Few employers will be able to afford to discriminate against these employees without alienating a growing customer base. However, some employers, such as those in the fitness and weight-loss markets, may wish to employ those who present the image of successful weight management.

Yanowitz, which involved a cosmetics manufacturer, shows that any policies based on employees’ physical appearance must be carefully written. At the very least, such a policy should be in writing, and based on objective criteria, such as Body Mass Index or specific athletic abilities. Standards for men and women should be proportionate if they cannot be exactly the same. Employees should be made aware of the requirements so that they have an opportunity to request accommodation for medical disabilities.