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Obesity’s new label a concern for employers

  • The Kansas City Star
  • Published Monday, July 22, 2013, at 11:59 p.m.
  • Updated Tuesday, July 23, 2013, at 12:06 p.m.

Ignore an obese employee’s request for a larger desk chair and prepare to be sued for violating disability accommodations law.

Don’t hire an overweight woman because she doesn’t fit your corporate sales image and face a possible discrimination lawsuit.

Call your employee “Fatty” instead of his name and open up your company to harassment charges.

A decision this summer by the American Medical Association to classify obesity as a disease, instead of a condition, has heightened concerns among employment law officials about such possible workplace outcomes.

Employees who are obese — possibly as few as 30 pounds over recommended body weight for their height, age and sex — are now more likely to be recognized as disabled with rights under the 2008 amendments to the Americans with Disabilities Act.

That can be a big, costly deal, given that one-third of American adults are classified as obese, on top of another one-third considered overweight. The U.S. obesity rate jumped nearly 50 percent from 1997 to 2012, according to the Centers for Disease Control and Prevention.

“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue,” AMA board member Patrice Harris said in a statement explaining the reclassification.

The physician group’s new definition of obesity doesn’t in itself have any force of law, “but there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said Myra Creighton, a partner at Fisher & Phillips, who specializes in advising employers about their obligations relative to workers with disabilities.

“It may be easier for employees to prove disability discrimination,” Creighton said. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.”

Disability law says an impairment is something that affects a major life activity or body function — and that could include walking or sitting.

A portent of things to come emerged in a lawsuit settled last year after the Equal Employment Opportunity Commission had sued a BAE Systems subsidiary in Houston for disability discrimination. The commission had charged that the company regarded an employee as disabled and fired him because of his obesity even though he could perform his job.

To settle the case, the company agreed to pay the fired worker $55,000 and cover his outplacement services, train managers in disability law compliance, and post anti-discrimination notices in the workplace.

Studies have long confirmed a “beauty bias” — a tendency for employers to hire and promote attractive people over less comely ones. That bias includes a tacit preference for trim people over fat ones.

But such bias is nearly impossible to prove in a discrimination lawsuit. And obese workers, with extremely limited exceptions, have never had any specific anti-discrimination protections by law.

The AMA’s reclassification of obesity as a disease sparked conjecture that will change.

Creighton’s advice: “Employers should avoid any suggestion that the employee’s weight suggests the employee cannot do a particular job.”

Employment law attorneys and human resource officials now are watching to see if the EEOC expands its definition of a disability beyond its current “morbidly obese” distinction. That generally means someone weighs twice the normal body weight.

“Even if the EEOC does not rush to expand the definition of disability, employers should be aware that overweight employees may still be protected under the ADA,” wrote Shannon Morales and Elizabeth Rudnick in a legal post on lexology.com.

Under federal disability law, even if employees aren’t morbidly obese and aren’t limited in life functions, they still may qualify as protected by law if the employer “regards” them as impaired.

Thus, workers passed over for hiring or promotion because of obesity may be able to show they were denied jobs because the employer regarded them as impaired.

Ken Sigman, owner of Health and Benefit Systems, a consulting company in Leawood, worries that the AMA reclassification of obesity as a disease needs more input from nutritionists and other groups before it causes changes in workplace case law.

“Obesity is more of a risk factor than a disease,” Sigman contended. “And it can be temporary. People can lose weight. So I think the AMA may have gone a bit too far.”

Without a doubt, Sigman acknowledged, studies show that obesity correlates to higher risks of diabetes, heart disease, stroke and other metabolic syndromes. And those conditions lead to higher medical and pharmacy costs, more absenteeism, and higher workers’ compensation and short-term disability costs.

But he warned against employers making assumptions about who is obese. Body fat analysis can show surprising results, he said, sometimes proving, for example, that hulking football players have extremely low body fat or apparently “normal-sized” women have high fat indexes.

Obesity in adults is defined as having a body mass index, or BMI, of 30 or higher.

The AMA’s designation also spurred some criticism that “medicalizing” obesity could encourage doctors to prescribe more costly drugs and do even costlier weight-loss surgeries rather than encourage lifestyle changes.

But the AMA, joined by the American Association of Clinical Endocrinologists, the American College of Cardiology and others, said obesity was a “multimetabolic and hormonal disease state.”

“The suggestion that obesity is not a disease but rather a consequence of a chosen lifestyle exemplified by overeating and/or inactivity is equivalent to suggesting that lung cancer is not a disease because it was brought about by individual choice to smoke cigarettes,” the AMA resolution said.

Jack Bastable, a wellness consultant with CBIZ in Leawood, said employers’ current focus on the Affordable Care Act is overshadowing discussion of obesity rights in the workplace.

“But there’s no question among us in the industry that the light is shining brighter and brighter on obesity,” Bastable said. “It will get more attention. We lead the world in obesity, and that’s a complex issue. Everything from school lunches to the snack industry are trying to engineer changes, but it’s hard to change, and we really haven’t fully addressed about how to deal with obese people in the workplace.”

To reach Diane Stafford, call 816-234-4359 or send email to stafford@kcstar.com.

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