Retaliation Weigh-in - Don't Be the Biggest Loser

While watching the Biggest Loser may be entertaining or even inspiring, dealing with an overweight employee may be a human resources nightmare.

A person’s weight is a delicate topic in almost any conversation. When an employee’s weight negatively affects some aspect of your company…job ability, uniform fit, image, or maybe just a manager’s opinion…how does a company handle it? Can you legally fire someone based on their girth?

Where Does Your Employee Stand?

The first thing to consider is your State’s at-will stance, explored in further detail in my blog Preparing for the Oscars: Can You Retaliate Against Your Worst-Dressed Employees? At-will employment allows an employer to terminate except for the federally protected classes of race, color, religion, national origin, age (40 and older), disability, and pregnancy covered by these jurisdictions. After the at-will status of the employee is established, consider that only several cities and the State of Michigan recognize weight-based discrimination as illegal. This means that if you’re not covered by these jurisdictions, yes, an employer can fire an employee (or not even hire them in the first place) simply for being overweight. However, this doesn’t mean that an employer should fire their weighty employees willy-nilly—as with all terminations, it is best to have a good plan in place on the chance that the fired employee returns to your door with a lawsuit in hand. There is a possibility that the company will need to prove they weren’t fired for a protected reason. For example, if they believe they were let go because of their gender, you will have to show the true reason to defeat the suit—even if the truth of “you’re too fat to do x-y-z” hurts their personal feelings. In addition, the company needs to be mindful of a potential disability claim. Did the employee’s weight rise to the level of a legal disability and could there have been a reasonable accommodation should be analyzed.

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If you'd like to read more articles by Jeana Goosmann, follow her blog here or on  JD Supra here. If you have any questions on the above, don't hesitate to contact Goosmann Law Firm below.