Ruling Could Spur Hiring Bias Against Obese Workers

By Staff Report

Oct. 19, 2009

An Indiana state court’s ruling that would require a small business to pay for weight-loss surgery could make employers more cautious when hiring obese people, employment attorneys say.

The Indiana Court of Appeals upheld a workers’ compensation board ruling in August that pizza chain Boston’s The Gourmet Pizza would be required to pay for the weight-loss surgery of a former cook, Adam Childers, after doctors said the procedure was necessary to fix a back injury he suffered on the job in 2007.

The ruling mirrored a similar finding in August by the Oregon Supreme Court in which an employer was told to pay for weight-loss surgery for an employee whose workplace injury required a knee replacement.

The issue could lead employers—particularly small businesses—to think twice before hiring an obese worker, just as some businesses have enacted policies against hiring smokers, says Joseph Lazzarotti, a partner in the benefits group of Jackson Lewis. Weight-loss surgery can cost upwards of $25,000.

“How do you deal with the fact that … hiring somebody could potentially bankrupt you?” Lazzarotti says. “As a small-business owner, people might think of that and weigh the risks of a [discrimination] claim because the alternative is they may be bankrupt.”

Obese employees, like smokers, so far have had little success claiming they were discriminated against.

Weight generally is not considered a disability covered under the Americans with Disabilities Act despite changes that went into effect in January broadening the definition of a disability, says Ramona L. Paetzold, a professor at Mays Business School at Texas A&M University.

“We don’t know yet if [the changes to the ADA] will include people on the basis of weight,” Paetzold says. “If so, what will ‘obese’ be defined as, and will causes of obesity play a role?”

If obesity is included under the ADA, it would likely be narrowly defined to exclude a condition that is the result of a person’s lifestyle.

While there have been few cases like the one in Indiana, the growth of obesity in the workplace may lead to more workers’ compensation or discrimination cases.

If the courts recognize obesity as a disability, millions of obese Americans could potentially claim discrimination. About two-thirds of Americans are overweight, and 27 percent—about 72 million—are obese, according to data from the Centers for Disease Control and Prevention.

The recent workers’ compensation rulings, meanwhile, could lead companies to narrowly define a person’s job so that employers are not held accountable for a workplace injury that falls outside their job role, says Michael McAuliffe Miller, an attorney in the labor and employment group of Eckert Seamans Cherin & Mellott in Harrisburg, Pennsylvania.

“To avoid the outcome of the Boston case, employers have to make sure that the people they hire are physically able to do the job,” he says.

Still, Miller says the ruling may not have broad legal implications for employers.

A key fact that went against the company was that Childers’ weight ballooned from 340 pounds to 380 pounds after he stopped working.

A doctor concluded that Childers’ back recovery was “doomed to failure” unless he lost weight. After physical therapy worsened Childers’ back pain, his doctor recommended back surgery.

The company argued that Childers’ weight constituted a pre-existing condition for which it was not responsible.

Citing a precedent in a case involving a longtime smoker, the court ruled differently. It said the employee’s pre-existing obesity, combined with his back injury and subsequent weight gain, formed a new work-related “single injury” the employer was responsible for treating.

One policy resolution, Lazzarotti says, could be for states to create insurance pools for obesity-related workers’ compensation claims similar to “second injury funds” established to encourage workers to hire disabled individuals. The funds help employers pay for pre-existing disabilities further complicated by workplace injuries.

—Jeremy Smerd

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