Department of Labor's Latest Online Resource: Recordkeeping and Record Retention eLaws Advisor

Posted by Molly DiBiancaOn May 7, 2008In: Internet Resources

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To employers, recordkeeping, record retention, reporting, and notice requirements can seem like a complex algorithm of numbers and dates, precariously aligned against a backdrop of the numerous state and federal employment laws. The U.S. Department of Labor (DOL) has unveiled yet another compliance tool for employers.

The newest "elaws advisor," which was unveiled earlier today, helps employers take the first step in any compliance objective--determining which of the DDOL's recordkeeping, reporting and notice requirements apply to them. The new Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a "FirstStep" suite of advisors. Just like it sounds, the "FirstStep" online tools all focus on providing employers with the right starting point as they work towards implementing best practices throughout the organization. Also included in the suite are the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

The elaws advisors are free, Web-based tools, making them easily accessible by employees and employers alike. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law. For example, by asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws govern the user's business. The advisor then provides information from the Labor Department's Employment Law Guide on the basic provisions of these laws.

The new FirstStep Recordkeeping, Reporting and Notices Advisor summarizes the paperwork requirements for each law. The FirstStep Poster Advisor, which can be used to download and print off Labor Department posters for free, was revised to include information on where the posters must be displayed in the workplace, and what size and language requirements apply to each.

This suite of FirstStep elaws advisors is available at

The DOL offers more than 25 other elaws advisors covering a wide range of employment law topics, such as minimum wage and overtime, child labor, veterans' workplace rights, health and retirement benefits, and workplace safety and health. For more information, visit

Sexual Harassment Claim Survives Dismissal Despite the Absence of Any Conduct “Directed at” Female Employee

Posted by Teresa A. CheekOn May 6, 2008In: Harassment, Sexual, Purely Legal

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Sexual Harassment Claim Based on Raunchy Radio Listening Leads to Liability

A female employee who quit her job when her employer failed to respond to her complaints about the offensive conduct of her male co-workers will see her day in court. A federal appeals court revived the sexual harassment claims, which alleged that the employer permitted the co-workers to enjoy the risqué humor on a daily radio and did nothing to stop the crude derogatory terms often employed when discussing women.

The outcome in Reeves v. C.H. Worldwide Transportation, Inc. (click the link for full-text of the opinon), seems to have surprised some employment law bloggers, including the Ohio Employment Law Blog, one of our favorite e-law blogs.

I think the outcome is consistent with prior cases.

Offensive Conduct

The employee, who was the only woman in her work group, was offended by being subjected to her co-workers’ choice of a daily morning radio show that featured sexually explicit content. They ignored her complaints to them and to her supervisor about the program, which included topics graphic enough not to post.

In addition, commercials broadcast during the program featured: “sexual favors; a bikini contest that instructed women to wear their most perverse bikinis; . . . a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “’sexual tyrannosaurus rex.’”

The employee also complained about her male co-workers’ frequent use of the words “whore,” “bitch” and other, more colorful terms to describe women they disliked. And, all the while they continuously usedl sexually explicit “language, phrases, jokes, songs, comments, [and] remarks.”

Trial Court Finds "Not Based on Sex"

The district court granted judgment in favor of the employer, deciding that the harassment was not “based on” sex, since all the workers in the office were subjected to the same working conditions, and since the offensive conduct was not expressly “directed at” Reeves. The Eleventh Circuit Court of Appeals reversed.

Appellate Court Finds the Conduct Did Not Have to Be "Directed At" the Employee

In its decision, the Court of Appeals relied on a prior decision involving racial harassment. In that case, the Court held that racially derogatory language did not have to be “directed at” the complaining employee in order to create a racially hostile workplace. Similarly, said the court in Reeves, found that sexually derogatory language did not have to be directed at the complaining female employee. The degrading nature of the language could be sufficient to satisfy the requirement that the harassment be “based on” sex.

The court also held that Reeves had produced sufficient evidence for a reasonable jury to find that the harassment met the “severe or pervasive” requirement. The court noted that the offensive sex-specific language and the radio program were near daily occurrences for almost three years, (at which point Reeves quit). So the frequency of the conduct favored Reeves’ claim.

On the other hand, while the language was offensive, it was not directed at Reeves herself and therefore the court did not deem the conduct to be especially severe. Further, the conduct was not physically threatening to Reeves. But, it was objectively humiliating to her, particularly in light of evidence that Reeves’ male co-workers knew that their conduct made her uncomfortable but did not stop it.

Finally, there was evidence that the conduct interfered with Reeves’ work. She testified that at times the conduct made it difficult for her to concentrate on her work and she would have to leave the room. She also had to take time away from her work to ask her co-workers and supervisor to stop the offensive conduct, and to make notes for herself about what had happened.

Since Reeves had presented sufficient evidence for a reasonable jury to decide in her favor, the court sent the case back to the trial court for further proceedings.

Some commentators have expressed doubt as to the soundness of the court’s reasoning, especially in light of the possibility that the conduct was not actually “directed at” the lone female employee in the group. As the court noted, Reeves’ co-workers knew that she found their conduct to be offensive. But they continued to engage in it despite that knowledge.

These are the types of activities we routinely counsel our clients not to permit, and this case illustrates why we give that advice.

Maybe Yes, Maybe No. New FMLA Proposed Regulations Try to Address Employers’ Concerns But Do They Succeed?

Posted by William W. BowserOn May 6, 2008In: Family Medical Leave

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The FMLA's newly proposed regulations are a serious attempt to address employer concerns and have already drawn criticism from unions and employee advocates. Through the new regulations, the Department of Labor (DOL), has addressed some of the most complained-of provisions, but not all.

The newly proposed regulations with contain provisions that:

• Fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave

• Clarify the eligibility requirements for employees who are jointly employed

• Clarify when an employee’s inability to work overtime exhausts FMLA leave

• Establish that light duty does not exhaust FMLA leave

• Allow employers to deny bonuses (such as perfect attendance or hours worked awards) to employees who don’t qualify for them because they took FMLA leave

• Allow employers to require employees to comply with the terms and conditions of their paid leave policies in order to substitute paid leave for FMLA leave

• Allow employees and employers to voluntarily settle claims of past FMLA violations

• Provide very minimal clarification of the definition of a "serious health condition"

FMLA Servicemember Leave. “Military-Caregiver” Leave”

Posted by William W. BowserOn May 5, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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This FMLA Update briefly reviews the second new type of FMLA leave offered to servicemembers and their families, Military-Caregiver Leave.

The two new FMLA leave types are designed to protect members of the Armed Forces and their families. Both types of leave enable a family member of a servicemember to take protected leave in two circumstances. The first, Active Duty Leave, was discussed in an earlier post. The second, is known as Military-Caregiver Leave. This new protection grants time off to the family member to care for a related servicemember who is ill or injured due to active duty.

• Employees may take an unprecedented 26 weeks of FMLA leave when a spouse, parent, child, or other blood relative for whom they are "next of kin" incurs a serious injury or illness on active duty in the Armed Forces.

• This 26 week total includes regular FMLA leave.

• Leave may be taken intermittently, but must be completed in a 12-month period.

• This is a one-time leave entitlement.

• "Next of kin" is an entirely new category of family member; it applies only to this specific type of leave.

• "Serious injury or illness" is much broader than the typical serious health condition; it applies only to this specific type of leave. Your speaker will provide a detailed definition.

• As with other FMLA leave, employers may require employees to take this type of leave concurrently with paid leave such as vacation, personal, or sick leave.

• Employers may require certification of servicemember’s health condition.

Office Politics or Politics at the Office: Delaware Employers, Pick Your Poison

Posted by Adria B. MartinelliOn May 5, 2008In: Employee Engagement

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This year’s hot democratic primary has plunged politics into the workplace more than ever. Today’s News Journal ran an article on the subject, “Talking politics at the office: Employers, managers must walk fine line on what to allow”

Our own Sheldon Sandler was quoted on the issue of whether it is advisable to prohibit political discussion in the workplace altogether. Although these discussions poses some risks, Sheldon suggested that banning such discussion outright is not a good idea.

From Obama’s stirring speech on race, to whether or not he wore a flag pin, this year’s election has raised some hot topics for watercooler debate – not likely to slow anytime soon at Delaware workplaces.

Upcoming Seminar Gives Delaware Employers Up-to-the-Minute Update on FMLA

Posted by William W. BowserOn May 5, 2008In: Seminars, Past

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Human Resource professionals see the Family & Medical Leave Act ("FMLA") as a major compliance challenge. And it just never seems to get easier. Lately, the FMLA is back in the news. The Act has seen more legislative and regulatory action in the past few months than it has during the previous ten years.

On January 28, 2007, Congress expanded the scope of the Act to include two new types of military leave for families of servicemembers. Next, on February 11, 2008, the U.S. Department of Labor released its long-awaited proposed revisions to the FMLA regulations.

William W. Bowser and Scott Holt will be addressing these important changes at the May 13 meeting of the Delaware Society of Human Resource Management (SHRM). The meeting will begin at 5:30 p.m. at the Cavalier Country Club. Our presentation will focus on what you need to do now in response to these changes.

Online Registration for the meeting is available here. Directions to the event are available here.

FMLA Servicemember Leave--"Active-Duty" Leave

Posted by William W. BowserOn May 5, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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The FMLA now provides two completely new categories of leave for employees who are related to a servicemember who is called to active duty or injured in the military.

The first type of leave is triggered when the employee's relative is called to active duty. It is designed to enable servicemembers' family to get FMLA time off to make the arrangements necessary for the servicemember's departure. Below is a short summary of the need-to-know points for this first type of new FMLA leave.

Active-Duty Leave:

• Covers employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." While “qualifying exigency" is yet to be defined by DOL, but it probably will include -- at a minimum -- covering necessary family and childcare responsibilities of the servicemember when that family member is called to active duty.

• Employees who request this type of leave are subject to most of the same requirements as other forms of FMLA leave, including employee eligibility and notice requirements, maintenance of benefits, and job reinstatement.

• Employers may require certification that the employee’s family member is on active military duty in accordance with guidance to be provided by the Secretary of Labor.

• Employers should grant these leave requests liberally until DOL defines the term "qualifying exigency".

Bowser Featured in the Philadelphia Inquirer’s Coverage of Delaware Cancer Treatment Program

Posted by E-LawOn May 4, 2008In: Locally Speaking, YCST

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William W. Bowser, a partner in our Employment Law Department, is featured in the Philadelphia Inquirer’s coverage (March 31, 2008; Health & Science) of Delaware’s cancer treatment program. Pictured in the article with Delaware Governor Ruth Ann Minner and state Health & Social Services Secretary Vincent Meconi. Bowser is chairman of the 15-member advisory council formed to develop a cancer-care battle plan for residents of the state.

The article highlights Delaware’s high cancer death rate, and the state’s unique program that provides uninsured residents with free cancer treatment for up to two years. “We wanted to do the things that would make a difference and were possible,” panel chairman Bowser is quoted in the article. He received the National Governor’s Association Award for Distinguished Service to State Government in 2007 for his work as chair of the nationally-recognized Delaware Cancer Consortium.

What's the Opposite of Engaged Employees? Passionate Slackers.

Posted by Molly DiBiancaOn May 4, 2008In: Employee Engagement, Just for Fun

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Engaged employee. Engaged workforce. Management and leadership gurus love these words. Employers don't care what you call it--they just want to achieve it. If you're discouraged about your attempts to motivate employees, here's a story to lift your spirits. Hopefully, you have had more success than this young woman's managers.

Employers at the top of the game know the value of a workforce full of engaged employees.--employees who take ownership of their work. Well, if there ever was a story to demonstrate what an engaged employee is not, this is it.

An Iowa Administrative Judge denied unemployment benefits to Emmalee Bauer, 25. Bauer was formerly employed by Sheraton as a sales coordinator. Apparently, she did not do much coordinating, though. Instead, she spent her time at work scribing heart-felt journal entries she hopes may someday be published. But this is not the journal you might picture.

Her journal was devoted entirely to her work-avoidance strategies.

That's right. Every day, throughout her shift, she journaled away. And, by the time the Sheraton gig was over, she'd created a 300-page, single-spaced Manifesto of a Slacker.

I'm only here for the money, and, lately, for the printer access. I haven't really accomplished anything in a long while . . . and I am still getting paid more than at any job I ever had before.

I am going to sit right here and play Elf Bowling or some other nonsense. Once lunch is over, I will come right back to writing to piddle away the rest of the afternoon.

The judge who denied Bauer's unemployment appeal, said that the journal demonstrated Bauer's refusal to work as well as her "amusement of getting away with it."

If there was ever a case where an employer should be able to sue an employee to recoup the money it lost by employing her, this sure seems to be the one. Can you say "refund"?

[Hat tip to the Manpower Employment Blawg]

Employer Quits Its Smoking-Penalty Policy

Posted by Molly DiBiancaOn May 4, 2008In: Newsworthy, Off-Duty Conduct

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Off-duty conduct, especially smoking and tobacco use, are often regulated by employers who complain of increasing health-care costs. But not every employer believes that workplace regulations on employee's off-duty conduct is an appropriate solution.

Health Care Premiums for Smokers

The Tribune Company, which owns the Chicago Tribune, came under new ownership in December. Sam Zell, the new chairman and chief executive, recently revoked the company's $100-per-month smoker's penalty. The penalty, says the new owner, "is inconsistent with the new culture."

The CAO and Executive VP, Gerry Spector, told employees in an e-mail, "We'd rather you use your own judgment when it comes to tobacco use, not impose ours upon you."

The company will continue to offer smoking-cessation programs to employees at no cost but will reimburse those employees who had been subject to the penalty.

This certainly a different approach to the way most employers are treating smokers these days. Is this an indication that employers may move towards positive reinforcement instead of penalties to reduce the cost of health insurance?

The relationship between smoking and employability is a familiar topic on this blog. To visit some of our previous posts on the issue, click here.

More on the story can be found at the Chicago Tribune's website.

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

Posted by Molly DiBiancaOn May 4, 2008In: Fair Labor Standards Act (FLSA), Off-Duty Conduct

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Risk-Avoidance provisions in employee contracts are more common than you might think. Think of it as insurance on an investment. Employers pay huge sums to retain these "ultimate performers." The employment contract is one way to try to ensure that your precious and irreplaceable commodity (i.e., the all-star employee), doesn't voluntarily put your investment in harm's way.

Waterfall Rafters

The activities subject to risk-avoidance provisions vary greatly. From driving motorcycles to skydiving, the sky's the limit on what types of "dangerous" engagements can be prohibited.

The Human Capitalist has a short post on Why Professional Athletes Have Provisions in their Employee Contracts. We've posted about this topic before in the context of Philly's own ex-newsreporter, Alycia Lane, and the morals clause in her employment agreement that permitted CBS to fire her after being making headlines herself one too many times.

Human Capitalist also posts a great YouTube video demonstrating just why sports figures should have "risk avoidance" provisions in their contracts.

For more on this topic, see our earlier post, Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?, which discusses morals clauses in employment contracts.

Lawyer Who Won’t Play Nice Gets Homework Assignment from Judge

Posted by Molly DiBiancaOn May 4, 2008In: Jerks at Work

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Delaware attorneys are not strangers to civility. In 2003, the Delaware Supreme Court and the Delaware Bar Association promulgated the “Principles of Professionalism for Delaware Lawyers.” The Principles provide insight into the practice of law in the First State. “Civility” is defined in the Principles and is taken seriously by the courts and bar as a whole.

The Principles demonstrate that civility in the workplace is not limited to the cubicles of corporate America. Jerks at Work are not welcome in any workplace, including the lawyer’s workplace—the courtroom. Here's a story about a judge outside of Delaware who is an advocate of civility:

U.S. District Judge Vicki Miles-LaGrange sanctioned lawyer Gerard Pignato for his extraordinarily jerky conduct. Pignato was reprimanded for comments he made in letters to his opposing counsel. As penance, the judge ordered the sharp-tongued Pignato to write an article on civility. He must include why he is writing the article and direct it to new attorneys, so they might avoid a similar embarrassment.

Here are some examples of his noxious and debasing comments:

Your self-serving comments are putting me to sleep. Can you not say anything in a page or less? You're just a broker who refers difficult cases to experienced attorneys. Be like a potted plant and sit quietly in the corner.

{The court's full Opinion can be read here.}

You don’t have to be a lawyer to experience this type of attack from a colleague, vendor, or customer, even. This conduct is very effective—no matter how illogical, it is difficult to jut brush off degrading comments.

I think Judge Miles-LaGrange should be applauded for taking action when she saw what can be described only as unbecoming conduct. And her response is commendable, as well. Unlike a monetary fine, Mr. Pignato is forced to sit down, pen in hand, and mull over his behavior and put into words just how dishonorable his actions were and how embarrassing this type of attitude is for other members of the bar. Plus, if his article deters even a single junior lawyer from scribing a seething note to opposing counsel, he’ll have made a real contribution to the profession.

The Preamble to the Principles of Professionalism states:

The purpose of adopting the Principles is to promote and foster the ideals of professional courtesy, conduct and cooperation. These Principles are fundamental to the functioning of our system of justice and public confidence in that system.

Maybe Mr. Pignato can use the Delaware Principles as a reference as he writes his article for the Oklahoma Bar Journal.

[Hat tip to the Legal Profession Blog]

John Phillips at The Word on Employment Law noted the ABA Journal's post on this story, as well.

Delaware Labor & Employment Attorney Bill Bowser Featured in the Philadelphia Inquirer’s Coverage of Delaware Cancer Treatment Program

Posted by Molly DiBiancaOn May 4, 2008In: Delaware Specific

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William W. Bowser, a partner in our Employment Law Department, is featured in the Philadelphia Inquirer’s coverage (March 31, 2008; Health & Science) of Delaware’s cancer treatment program. Pictured in the article with Delaware Governor Ruth Ann Minner and state Health & Social Services Secretary Vincent Meconi. Bowser is chairman of the 15-member advisory council formed to develop a cancer-care battle plan for residents of the state.

The article highlights Delaware’s high cancer death rate, and the state’s unique program that provides uninsured residents with free cancer treatment for up to two years. “We wanted to do the things that would make a difference and were possible,” panel chairman Bowser is quoted in the article. He received the National Governor’s Association Award for Distinguished Service to State Government in 2007 for his work as chair of the nationally-recognized Delaware Cancer Consortium.

Fraudulent Sexual Harassment Claim Prompts Law Firm to File Preemptive Suit Against Sordid Secretary

Posted by Molly DiBiancaOn April 30, 2008In: Delaware Specific, Newsworthy

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An employer sues an employee before the employee sues first. To some employers who have endured the bitter pill of meritless litigation filed by an ex-employee, this sounds like a dream come true. To most employment law attorneys, this sounds like a dream world.

The New York Law Journal published a fascinating, if sordid, story last week titled, NY Law Firm Preemptively Sues Secretary Who Threatened Rape Suit Against Partner. The story involves a complaint filed by a law firm, Bivona & Cohen, against a secretary, Windy Richards. According to the complaint, Ms. Richards had performance problems and decided to try to hang onto her job in an, well, an unusual way.

Allegedly, she targeted a partner who she knew had a drinking problem. The opportune moment arrived. While the partner was impaired by alcohol, Richards performed a lap dance for him. Next, she obtained "evidence" on a towel, demonstrating at least some kind of sexual encounter (think Monica). Then she hired a lawyer, who demanded $9 million to settle her claim that the partner in question had sexually harassed and ultimately raped her.

But the law firm beat her to the courthouse, filing a preemptive suit againt the sordid secretary. The suit asserts claims of defamation, tortious interference and intentional infliction of emotional distress. In addition, the suit seeks a declaratory judgment that the secretary was not harassed or harmed by the partner. Additionally, the firm seeks a judgment declaring that the firm may lawfully fire her for providing a false social security number to conceal a 1991 drug-related criminal conviction.

The partner has been disciplined in a manner not disclosed in the lawsuit (although the filing of the lawsuit publicizing the alleged drinking problem and lap dance incident may be viewed as significant disciplinary action all by itself). The secretary is on paid leave. No doubt the secretary's answer to the complaint will include counterclaims for sexual harassment and retaliation.

The law firm's strategy is highly unusual, but not unprecedented. A few years ago, Fox News host Bill O'Reilly did the same thing, and was represented by the same attorney, Ronald Green of Epstein, Becker & Green. In that case, O'Reilly accused his accuser, who had been trying to negotiate a settlement of a sexual harassment claim, of attempted extortion. Trouble is, as pointed out by The National Law Journal, currently, attempted extortion is a crime, not a basis for a civil lawsuit.

The Link Between Race & Obesity: Disparate Impact Waiting to Happen?

Posted by Molly DiBiancaOn April 29, 2008In: Off-Duty Conduct, Race (Title VII)

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Employers face another obesity obstacle.

As everyone knows, Americans have been gaining more and more weight over the past forty years or so, as confirmed by the National Institute of Health’s website. Reading the recent post in this blog about obesity policies made me wonder whether the Americans with Disabilities Act is the only law that such a policy might conflict with. What about Title VII of the Civil Rights Act of 1964?

One of the lesser-known ways of getting into trouble under Title VII is through unintentional discrimination, also known as “disparate impact.” That’s where an employer adopts what appears to be a race-neutral, gender-neutral rule for making selection decisions such as hiring, promoting or terminating employees.

If the policy adversely affects one race or gender more than another, the employer will have to show that the rule is “job related for the position in question and consistent with business necessity.” If the employer can make this showing, the plaintiff is must point to an available alternative practice that does not have a discriminatory effect.

So my question is, would an anti-obesity policy have an adverse impact on any protected group? Here’s what the NIH website says:

Q: What is the prevalence of overweight or obesity in minorities?
A: Among women, the age-adjusted prevalence of overweight or obesity (BMI > 25) in racial and ethnic minorities is higher among non-Hispanic Black and Mexican-American women than among non-Hispanic White women. Among men, there is little difference in prevalence among these three groups [6]. Sufficient data for other racial and ethnic minorities has not yet been collected.

    Non-Hispanic Black Women: 79.6 percent Mexican-American Women: 73 percent Non-Hispanic White Women: 57.6 percent

    Non-Hispanic Black Men: 67 percent
    Mexican-American Men: 74.6 percent
    Non-Hispanic White Men: 71 percent

(Statistics are for populations age 20 and older.)

Studies using this definition of overweight and obesity provide ethnicity-specific data only for these three racial and ethnic groups. Studies using different BMI cutoff points derived from NHANES II data to define overweight and obesity have reported a high prevalence of overweight and obesity among Hispanics and American Indians. The prevalence of overweight and obesity in Asian Americans is lower than in the population as a whole.

A study published in the Epidemiologic Review similarly reports that “[m]inority and low-socioeconomic-status groups are disproportionately affected at all ages” by obesity. The prevalence of obesity also increases with age, according to the same study.

It’s food for thought, and perhaps more fodder for creative plaintiffs’ attorneys or the EEOC.