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May 30, 2006 > Watercooler Counsel

Watercooler Counsel

Weighty matters

by Rich Proulx

Q: I own a company who has an employee with a serious weight problem. Over the past few years, she's gone from rather heavy to morbidly obese. I am concerned that she projects a negative image to my clients who may think we hire slow and lazy employees. Is there any problem with putting her on an unpaid leave of absence until she gets her weight under control?

-Ivan L.
Hayward.

A: You bet there is. Taking action against your employee will likely be running afoul of federal disability laws that prohibit employment discrimination. Federal (and many state) disability laws protect employees with a disability from discrimination in the workplace - and being morbidly obese may be a disability. The law defines disability as "a physical or mental impairment that substantially limits one or more major life activities." So, if your employee's morbid obesity substantially limits her in walking, for example, she is likely protected by the Americans with Disabilities Act.

So, if you take any action against her for her disability, you could be liable. Of course, being overweight does not automatically mean a person has a disability. (Otherwise, quite a few of us would have a disability, especially on the day after Thanksgiving.) However, what is also covered by the law are individuals whose physical or mental impairment substantially limits major life activities only as a result of the attitudes of others toward such impairment, or is regarded as having a substantially limiting impairment by an employer when they don't. An employer who refuses to hire an applicant because of a perception that the person's morbid obesity will interfere with their performance may be discrimination.

What I suggest for you and other employers in your situation is that you educate your managers about disability discrimination. Don't create "regarded as" claims by making assumptions on what duties overweight employees can perform. Lastly, treat requests for accommodation from obese employees with sensitivity, since obese individuals often have other impairments that would afford them protection of disability laws.

Q: Would it be a violation of the law for my employer to place an ad requesting that only non-smokers apply for available positions?
Tanya G.
Fremont.

A: Hmm, I'm unaware of any Federal laws that would bar this activity. Most states have laws forbidding employers from firing employees for lawful, off-duty conduct, such as smoking. Usually, this encompasses all legal personal activity by employees that occurs away from the worksite on their own time except when the restriction reasonably relates to the job. For example, it may be legal for an employer to fire a smoking cessation counselor for smoking, since smoking (and that sweet tobacco smell clinging to her clothes) could conflict with the performance of the employee's duties.

Whether these laws would prevent you from placing the ad you described or refusing to hire smokers depends on the law of your state. For example, according to Dean Fryer, spokesperson for the CA Dept. of Industrial Relations, the California law that prohibits discrimination against employees for their off duty, off premises conduct would not prohibit your employer from placing an ad requesting only non-smoking applicants nor hiring only non-smokers. Employers have pointed out that smokers cause insurance rates to increase and hiring non-smokers can reduce this cost. Check with your state labor commissioner for more information about how your state laws affect you.

Rich and his team of government experts want your work to work. A recent study reported by the CDC stated 66% of Americans are overweight or obese. Send your questions to richard.proulx@eeoc.gov, whose day job is Supervisory Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.

 
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