Weight discrimination and the workforce

There are significant impacts to one’s health which can stem from being overweight, according to most medical authorities. But for those who are overweight or are healthy but considered fat by societal standards face, there are workforce challenges imposed on them in the form of weight discrimination. And companies are starting to become aware of the risks if this is allowed to go unchecked.

The problem of weight discrimination is not new. The Federal Reserve Bank of St. Louis conducted a study in 2011 which found that there are real differences in wages for both the obese and overweight.

“These findings indicate that there is, in fact, a consistent wage penalty for body fat and a wage premium for muscle,” said Michael T. Owayang, the study’s author, in the report, though he allowed there may be factors at work besides discrimination. Yet the study also drew from reports that gaining a kilogram of body fat was associated with a 1% loss in wages for most people.

More recently, a 2022 article in MIT Sloan Management Review noted that with 40% of American adults are considered obese and 70% are considered overweight, meaning significant numbers of Americans can be subject to negative stereotypes that overweight people “are lazy, less intelligent, lacking in self-discipline, sloppy in appearance, and less healthy.”

Neither study came across evidence that being overweight could impact productivity in the vast majority of roles, although the perception is widespread.

New York City banned discrimination against employees for height and weight with a law signed in May, joining a small number of states and municipalities to create legal protections against weight discrimination. New Jersey and Massachusetts are also considering similar bills.

“Very few jurisdictions actually have any kind of laws prohibiting weight discrimination,” said Christopher Avcollie, a managing attorney at Carey & Associates PC, a Southport and White Plains based firm specializing in employment law. “Weight and body type are not protected classes in the conventional sense.”

Avcollie noted that only Michigan has outlawed discrimination on the basis of weight at the state level.

“I think there should be such laws in every jurisdiction,” Avcollie said. “I see it in my practice, there are a number of ways that it comes to an employment lawyer. Sometimes it is pure weight discrimination based on things like hiring, highly qualified candidates are often overlooked and don’t get second interviews after an in-person phase of the interview process. They’re suddenly ghosted or told that the employer is going in another direction. This happens quite often, but it’s very difficult to prove that weight is a factor.”

However, he noted that in the case of the morbidly obese the Americans with Disabilities Act (ADA) and Connecticut Fair Employment Act can come into play if somebody is discriminated against for certain conditions.

Gary Phelan, a partner at the Stratford- and White Plains-based employment law focused firm Mitchell & Sheahan PC and an adjunct law professor at Quinnipiac University, pointed to his work on Connor v. McDonald’s as a moment when the ground on the matter started to shift. In that 2003 case, a Hamden man was offered a position as a cook at a local McDonald’s only to have his offer unofficially rescinded after he informed the manager of the measurements for his uniform. The case led to jurisprudence still used to argue that obesity can fall under the ADA today.

Phelan and Avcollie both believe that laws protecting employees from weight discrimination are not only likely but have a strong grounding.

“If for an example an employer terminates someone saying they’re unhealthy and are going to get hurt on the job or they are going to cost a fortune as far as health insurance costs, substitute in another medical condition it’s considered a disability,” said Phelan. “So, why should they not be protected? If you replace the word obese with cancer, they’re still making a decision based on a stereotype.”

Both lawyers also cautioned against engaging in office-wide weight loss challenges or activities with material rewards which might imply that an employer has a preference for a certain body type among employees. Activities that center on improving health such as smoking cessation or increasing overall physical activity are generally lower risk.

When workplaces discriminate against employees on the basis of weight, it can also create potential double binds, such as insurance plans costing more and actively discouraging healthy behaviors and attitudes. Being concerned with appearance can be detrimental to health.

Suzanne Vining, a personal trainer who works with clients across Westchester and Fairfield counties, holds three different certifications in fitness training and more than 20 years of experience as the founder of Moda Training in New Canaan. She said that the stigma against being overweight has been addressed by potential clients.

“I have had people come in and say, ‘Suzanne, do I need to lose weight in order to work with you?'” Vining recalled. “And that’s just nuts, I’m a functional fitness instructor, which means that I will start with a person at their level wherever they are.”

While some of her clients seek to lose weight, Vining said she looks for success in clients saying they no longer have pain in their joints or have more energy to get through the day.

“I don’t really believe in a weight loss type of program,” Vining said. “That’s not what I do, people come to me to have a great experience, to feel good about themselves and to get stronger.”

Dr. John Morton, the director of bariatric services for the Yale New Haven Hospital System and a professor in the department of surgery at Yale School of Medicine, noted that while health effects from being overweight can decrease lifespans by eight to 12 years, there is a social element to what his patients face which also needs to be addressed.

“What isn’t recognized a lot is the toll on patients,” Morton said. “It’s a disease that is very visible, you don’t need a blood test to ascertain if someone’s obese, people see that.”
Morton added the basis for many of the stereotypes about the overweight is not medically sound.

“There’s a belief that this is something that should be self-treated, but we have gained greater insight as to why people have difficulty in losing weight, and it’s called metabolic adaptation,” he explained. “When you get to a certain weight, usually above a BMI of 30, it becomes very difficult to lose weight on your own. As a result, only about one in 20 people are able to lose significant weight through dieting alone.”

Morton estimated he has performed bariatric surgery on around 6,000 patients and he said that there were many cases where former patients reported significant changes in how others treat them, including in the workplace.

Ironically, missing out on job opportunities and promotions tied to better insurance can also limit access to quality healthcare such as bariatric surgery or increasingly popular but expensive weigh loss drugs like Ozempic.

“Patients with obesity are some of the hardest working people I know,” Morton added. “I’ve treated everybody from janitors to CEOs and they’re hardworking people. They can have triple indemnity, they get the stigma, they get decreased wages, and on top of that they have less access to care and therapies they need.”

From a medical and legal viewpoint, the best approach an employer can have regards to overweight or obese employees is ultimately the same approach to take in regards to any employee: treat them with respect and assess them on the basis of their work.

“It’s the right thing to do,” Avcollie said, noting he has long delt with weight issues himself. “It’s a moral issue to treat people based on as Dr. King said the content of their character not the color of their skin. In this case it’s the content of the character not their body weight. I would advise them to focus on a candidate’s qualifications for the job and try not to put, no pun intended, any weight on the candidate’s appearance.”