The decision by the Citizens Medical Center in Texas not to hire obese applicants is far from unique, with over 25% of businesses admitting to being influenced by an applicant's weight during the hiring process - although most companies which discriminate against the obese don't have a written policy. Indeed, over the past 10 years, the rate of reported discrimination against the obese has almost doubled, says the lawyer who is leading the battle to use legal action against obesity, just as he led a very successful battle to use legal action as a weapon against smoking.
Each obese employee cost his company thousands of dollars extra each year on the average in totally unnecessary medical care costs, higher disability payments, more time lost from work, and for other reasons, says public interest law professor John Banzhaf, in addition to intangible losses. Also, more and more people expect a worker to reflect favorably on his employer, especially if the business involves health, explains Banzhaf.
Just as potential customers to a weight loss clinic, gym, or aerobic studio don't expect to be greeted by an obese employee, so too potential patients at a hospital - especially the growing number which promote wellness for patients and workers alike - can be turned off by doctors, nurses, and other health professionals who are obese, explains Banzhaf. Thus there are two very good reasons - huge cost savings and problems of image and reputation - for hospitals to give hiring preference to people of normal weight, or even to decline to hire the obese.
To those who argue that it's better and fairer for the company to simply charge obese workers more for health insurance, rather than refuse to hire them entirely, Banzhaf notes that - according to a ruling he obtained from HHS - the obese can be charged only a small additional amount for health insurance, and then only if it's part of a plan which meets rigid federal guidelines for so-called "wellness programs." The small amount, plus the difficulty smaller firms may have in making sure that their wellness programs meet all the federal requirements, makes it much easier to simply not hire obese applicants.
Banzhaf explains that virtually all human rights statutes prohibit discrimination based upon only a small number of immutable factors like race and gender, and only when there is no reasonable basis for the discrimination. Being obese, like being a smoker, is not an immutable factor, and there are many logical reasons to prefer employees who are not obese, says Banzhaf. That's why most states and other jurisdictions are reluctant to expand the class of people who can sue when they aren't hired - or are fired - to include the one-third of all Americans who are obese.
Prof. Banzhaf, who teaches a course about discrimination against people with disabilities, explains that the Americans With Disabilities Act (ADA) rarely provides protection to complainants who weren't hired because they were obese. "The ADA applies only to those who are so morbidly obese that they can't perform major life activities such as walking, standing and lifting. Since most people who weigh enough to be classified as obese can still walk, and stand, and lift, they are not entitled to protection," argues Banzhaf. Even in those rare cases of morbid obesity limiting typical daily activities, he says, many courts have demanded proof that the obesity was caused by a diagnosed medical problem, and not simply by unhealthy eating and lack of exercise.
To those who argue that it's unreasonable for people to be expected to lose weight to find a job, Banzhaf notes that the recent recession forced millions of people to go back to school to learn new skills, and forced others to uproot their families to areas where jobs were more readily available. Even so, millions were forced to take jobs paying far less than before, and many remain unemployed. "Making prospective employees drop 10 or 20 pounds is far less severe than requiring them to go back to college or relocate," suggests Banzhaf.
"Obesity is a major public health problem which costs the American economy well over $100 billion each year. Imposing personal responsibility on Americans who overeat by charging them more for health insurance, or even declining to hire them, may be an important step towards reducing our public health crisis," suggests Banzhaf, by providing a very strong incentive for them to eat healthier foods.
"At the very least, it forces the obese to bear more of the costs of the obesity epidemic themselves, rather the forcing fellow workers to bear it in the form of higher health insurance premiums, less medical coverage, or lower salaries, etc."