Can Employers Discriminate Based on Weight?

Gary, a 350-pound man, interviewed for a front desk job but ultimately was not hired. When he discovered that the position was offered to an equally qualified 130-pound woman, he immediately determined that the reason he was not chosen was due to his weight. 

Is this textbook weight discrimination? 

Is discriminating against a job applicant ever legal? See what Stratus HR Consultant Brad Fagergren (and now Esquire) says in this video.

While Gary actively fights weight bias in his everyday life, the perceived unfair treatment due to his body weight may not be considered unlawful employment discrimination. 

Legal Definition of Discrimination in the Workplace 

Unlawful discrimination refers to the unjust and illegal treatment of individuals based on protected characteristics or attributes. The key word to this definition for legal recourse purposes is “protected.” 

Theoretically, many attributes could be used to discriminate against someone. However, there are only a handful of characteristics that are protected by law: race, color, sex (including pregnancy, childbirth, sexual orientation, or gender identity), age, religion, national origin, genetic information (including family medical history), and disability. 

While your certified HR expert will tell you that weight-based discrimination is not a best practice, there are no laws that prohibit weight discrimination or discrimination on any other appearance-based criteria. Many obese employees feel the sting of having a weight stigma and may experience weight discrimination, but weight in and of itself is not a protected class. 

However, when a person’s weight is at a point to where they are classified as having a disability under the Americans with Disabilities Act (ADA), that individual could claim employment actions against them as discrimination based on a disability. 

ADA and Illegal Obesity Discrimination 

The Americans with Disabilities Act (ADA) provides protection for individuals with disabilities. While obesity itself is not explicitly listed as a disability, it can be considered a disability if it is caused by an underlying physiological disorder or condition and significantly impairs one or more major life activities 

What is Considered a Major Life Activity? 

Major life activities are things the average person can do every day. Per the Department of Labor (DOL), the list of major life activities includes but is not limited to: 

• Caring for oneself 
• Performing manual tasks 
• Seeing 
• Hearing 
• Eating 
• Sleeping 
• Walking 
• Standing 
• Lifting 
• Bending 
• Speaking 
• Breathing 
• Learning 
• Reading 
• Concentrating 
• Thinking 
• Communicating 
• Working 

Major bodily functions can also be considered major life activities. These include functions of the immune system, circulation, neurological, brain, reproduction, and more. 

When Would Obesity Impair a Major Life Activity? 

For obesity to be considered an actual or perceived disability under the ADA, it must substantially limit at least one major life activity that most people can perform with little or no difficulty. In other words, their ability to perform the activity is significantly restricted compared to the average person. 

A person must have medical evidence showing their obesity is more than just being overweight, but also a physical impairment. Oftentimes, obesity is accompanied by other health conditions such as diabetes, heart disease, arthritis, or some other condition that contributes to the major life impairment. 

When obesity is due to a physiological disorder, it is more likely to be considered a disability under the ADA. 

What Accommodations Are Required for an Obese Employee Protected by the ADA? 

Many people with poor physical health may find it difficult to walk or stand for extended periods of time. Some have severe joint and muscle pains due to excess weight that make it difficult to engage in physical activities. It’s also common for some overweight employees to have poor metabolic health and respiratory problems that affect their ability to breathe easily. 

While accommodations may need to be adjusted for a specific situation, common work accommodations may include ergonomic furniture, modified work duties, or additional breaks to manage physical strain. 

When Weight Discrimination is Unlawful 

Because weight-based workplace discrimination involves illegal discrimination under the ADA rather than having a weight bias, here are two situations where not offering a position to an obese applicant would be of concern: 

1. An obese or overweight applicant is turned down for a job because the hiring manager perceives the applicant will or may require disability accommodations.
2. The job applicant has a physiological impairment or disorder that results in weight gain or obesity (such as diabetes) that may require an accommodation for work and is rejected based on the supposed need of accommodation. 

In both situations, the common denominator is an assumed need to make an accommodation for the applicant. Although this could be difficult to prove, the key takeaway for hiring managers is to never reject an applicant based on a perceived assumption. Employers should hire qualified job applicants based on their ability to perform the required job duties, with or without an accommodation. 

When Weight Discrimination Is Lawful 

Some positions have a Bona Fide Occupational Qualification (BFOQ) that allows employers to hire individuals based on specific characteristics that are reasonably necessary for the job. These characteristics can include protected characteristics but must be directly related to the job requirements and not based on stereotypes or assumptions. 

While weight is not typically considered a BFOQ, there could be some situations where an obese person would not be considered for a position:   

1. Safety

Some jobs may require fitting into tight spaces or involve physical strain where weight might impact the safety of the individual or others. 

2. Physical Performance

Some roles require specific physical abilities (professional athletes, certain military positions, emergency responders) that could be impacted by weight. 

3. Uniform Standards

While controversial in some situations, the entertainment industry argues that weight is relevant for roles that require a specific physical appearance. 

To be considered a BFOQ, an employer must demonstrate that a weight requirement is essential to the job and that there is no reasonable alternative that would not involve weight discrimination. However, you may want to be prepared to justify your reasoning in court. 

Is Weight Loss Medication Covered by Insurance? 

Determining whether weight loss medications like Wegovy, Orlistat, Ozempic, or Zepbound are covered by insurance depends on several factors: your insurance plan, the type of medication prescribed, and if the medication is a medical necessity. 

To determine medical necessity, you may need a diagnosis of diabetes, hypertension, or a related health condition. Many insurance plans require prior authorization from your healthcare provider before the weight loss medication is approved, and some may require you to change your lifestyle (including unhealthy weight loss habits), diet, or exercise programs before approving it. 

For more information about your situation, contact your insurance provider directly. To learn how to get Wegovy or other weight loss medications, please visit their websites.

Who Can I Ask for More Questions about Obesity Discrimination? 

Difficult situations arise every day that may require professional guidance to steer you and your management team in the right direction and to help you avoid unfair hiring practices that land you with legal fees. For help with your specific situation, please contact your certified HR expert. 

Not a current Stratus HR client? Book a free consultation and our team will contact you shortly.