hlg_fat_officegrid-6x2.jpgThere have been undercurrents of weight discrimination in the workplace for years, but a Texas hospital decided to go anti-fat full throttle.

A Texas newspaper uncovered the story recently reporting about a fat-adverse Texas hospital — Citizens Medical Center — and it’s unheard of policy of refusing to hire anyone with a body mass index of more than 35.

The policy, according to The Texas Tribune, states:

… an employee’s physique “should fit with a representational image or specific mental projection of the job of a healthcare professional,” including an appearance “free from distraction” for hospital patients.

“The majority of our patients are over 65, and they have expectations that cannot be ignored in terms of personal appearance,” hospital chief executive David Brown said in an interview. “We have the ability as an employer to characterize our process and to have a policy that says what’s best for our business and for our patients.”

The hospital’s policy may cause outrage, but it’s an extreme example of an obesity bias that has been percolating in the nation’s workforces, starting with seemingly benign measures such as encouraging workers to walk at lunch.

Companies are beefing up their efforts to make you healthier and they’re taking out the big guns. You’re costing employers too much money for medical coverage and increasingly firms are imposing penalties on workers who don’t get with the healthy program.

According to a report released this week by healthcare consulting firm Mercer:

“87% of large employers say they will add or strengthen programs or policies to encourage more health-conscious behavior.”

While this hospital is talking about the image heavier workers send to customers, what drives so much of these decisions is the cost fatter employees represent. Healthier workers cost less when it comes to insurance, sick time, productivity, etc., according to many business experts.

But are any of these policies legal?

Unfortunately, weight discrimination is one of the last types of bias that’s, for the most part, legal. Michigan is the only state that has any laws on the books protecting the rotund among us, and a handful of city’s also have some restrictions.

The Michigan law, on the books in that state since 1977, has seldom been used but appears to be getting dusted off lately by overweight workers that believe they were given the shaft because of their weight.

For anyone who lives outside Michigan, the only recourse is going to the Equal Employment Opportunity Commission and seeking help under the Americans with Disabilities Act. Don’t expect a lot. Simply being overweight generally does not qualify as a disability.

David Scher, an employment attorney with the Employment Law Group, said: “This issue was litigated extensively in the airline industry sometime ago. The bottom line is that it is not illegal to discriminate solely on the basis of weight provided the employer has a legitimate business reason.”

However, he added, the Texas employer has two problems here.

“The slippery slope for this hospital is that is reasoning may be questionable and specifically states ‘appearance’ as its basis. For example, in Washington, DC, it is generally illegal to discriminate based on ‘any’ surface characteristic for its own sake, commonly called the ‘ugly law’. So a bold policy like this would likely be illegal in DC because it flat out uses “appearance” itself as the basis for the policy. So my opinion is that creating a BMI basis for outright discrimination based literally on appearance itself without some other legal basis. For example, so the weight limit on the plane is balanced or in this case so that the hospital employees can physically fit between hospital beds, an essential job function may be illegal.

“Further, the hospital will either need to ‘eyeball’ an applicant or do an actual BMI test and obtain highly personal medical information about an applicant. A hospital of all places should know that merely obtaining this information will likely violate privacy laws.”

The Texas example may seem over the top, but heavier workers have been hit in the wallet before.

In a study by John Cawley, an associate professor in the Department of Policy Analysis and Management at Cornell University, he found that obese white women had worse labor market outcomes than any other overweight workers.

“The obesity penalty for wages was much greater for white than black females,” he told me a while ago. He pointed out that research has shown that obesity tended to lower the self-esteem of white women much more than black women. “That could end up affecting your work potentially,” he speculates.

It’s hard to make a case for such bias at work, especially in today’s economy where finding a job can be so difficult.

Who’s looking out for these portly citizens? Not Citizens Medical Center. Will they be turning away fat patients next?

Actually, the hospital has a bariatric surgery center, so maybe they’re looking for new customers. But wait! They can’t afford the weight-loss surgery because they don’t have jobs.

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