Is Obesity the Next Protected Class?

Employers and smokers have been making headlines. Just last week, Whirlpool made the news when it terminated 39 employees after they were caught smoking, despite having signed statements when they were hired swearing that they were non-smokers.
Girl Scout Cookies

Over the past several years, it has become more and more common for employers to have stopped hiring smokers or to require smokers to pay higher premiums for health insurance. But not everyone agrees with the idea of punishing employees based on health-related factors. Some cite privacy concerns and paternalism as reasons why employers should not become involved in what employees do off the job. And others worry about what will come next. Currently, it is socially acceptable to ostracize smokers. And, in most states, including Delaware, there’s nothing unlawful about it.

But what about other health factors, like obesity? Will employers next target overweight and obese employees with higher health care premiums? Will businesses refuse to hire applicants who are over a certain body mass index (BMI)?

Some employers, like Westgate Resorts, a vacation-properties company based in Orlando, Florida, are trying to push employees into healthy lifestyles, which includes reducing obestity. At Westgate, employees aren’t penalized to lose weight but those who do are rewarded with a variety of incentives. Michigan is the only state, in addition to the District of Columbia, to prohibit discrimination based on weight. But, in other states like Delaware, where obesity is not a protected class, there would be little legal risk to implementing a weight-reduction policy. Of course, as my mother would say, “Just because you can, doesn’t mean you should.”

Employers should consider non-legal implications of such a policy. For example, how to define “obese.” If BMI is the only determining factor, you might not have many employees–more than two-thirds of Americans qualify under this definition. Or what about the woman who gained 60 lbs during pregnancy and isn’t in a real rush to get lose it right away? And how do you handle an employee who states that his obesity is related to another medical condition. This would sound the alarms of both HIPPA and the Americans With Disabilities Act (ADA). And would gastric bypass or other bariatric surgeries be pushed on employees as a “solution” to weight struggles? How will they regulate weight on a more organic level?

For example, will there be a ban on the sale of Girl Scout cookies?

That announcement would make headlines, for sure.

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