Hiring Obese Employees

You can't screen out potential hires based on looks. Your decision should be made according to their ability to perform job functions

My small business recently interviewed a potential employee who is qualified for the job, but quite overweight. I'm concerned about practical and health concerns, as well as making sure our non-discrimination policy is applicable, if we decide to hire him. Can you give me some guidance?

—W.R., Washington, D.C.

Americans are getting larger, studies show, and accommodating obese and overweight workers is becoming a concern for many business owners. Disciplining an obese employee or screening out obese applicants for their size alone can bring up legal charges of discrimination; however, employers can expect all employees to perform essential job requirements. If an obese employee has performance or attendance problems, the business owner can eventually, and legally, discipline or terminate him.

Your hiring decision should be made on the basis of qualifications, not looks, says John Robinson, an attorney in the employment law practice area at Fowler White Boggs Banker in Tampa, Fla. "Airlines made the mistake, decades ago, of hiring only attractive women as stewardesses," he notes. They justified the practice by arguing that their preferred customers—businessmen willing to pay top fares—wanted to see good-looking women in short dresses. The courts did not buy that reasoning.

If this job applicant is representing your company to the general public, you may take intangibles such as personal appearance into account in your hiring decision, Robinson says. Just be aware that heavy-set people can present a neat, professional look. An acceptable appearance is more about grooming, tasteful clothing, and meticulous presentation than it is about a particular body size or shape.

Ninety-Day Probation

The rigors of the job in question may also be taken into account in your hiring decision. "If this is a job where the person has to walk rounds, say as a night watchman, or climb steps, or climb a ladder, you have every right to ask the applicants to demonstrate that they are capable of performing," Robinson says. "We wouldn't take someone's word that they could drive a school bus safely, we'd expect them to pass a test. The same goes for applicants being able to safely complete their job duties."

If there's any question about performance, it's a good idea to institute a 90-day probation period—for all new hires, not just this one. "If someone is unable to make it to work every day for 90 days, no matter what the reason, they are not as valuable to your firm as someone who shows up every day," he notes.

A study released last week showed that obese workers miss more work days and file more workers' compensation claims due to job injuries than their slimmer counterparts at work. "Obesity puts a strain on the obese employee's general health, such as heart and respiration, and on the employee's medical benefits claims and compensation, due to missed work," Robinson notes.

Legal Bottom Line

In order to assist employees who want to slim down, many employers are embracing "wellness" programs, such as offering subsidized memberships to fitness clubs or on-site exercise programs. Some encourage employees to walk or climb stairs during lunch breaks, others provide healthy food service (see, 2/26/07, "Get Healthy—Or Else"). "One successful incentive is a rewards program for employees who participate in or attain certain exercise, training, and diet milestones," Robinson notes.

A person who is "morbidly obese"—someone whose body-mass index is 40 or above (a BMI under 25 is considered healthy), is considered to have a "protected disability" under the Americans with Disabilities Act (ADA) and other discrimination and health laws, Robinson notes. That means you must take reasonable steps to accommodate him in your workplace.

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