Can An Employer Not Hire a Candidate Because He or She is Overweight?

There is no federal law that prohibits employment discrimination based on weight. However, if a person is severely obese, he may be protected under the ADA/ADAAA. Camille A. Monahan, Tanya L. Goldman, and Debra Oswald wrote a comprehensive article for the ABA Journal of Labor & Employment Law, Volume 29, Number 3, Spring 2014 titled “Establishing a Physical Impairment of Weight Under the ADA/ADAAA: Problems of Bias in the Legal System.” In it, they argue for a need to add a protection based on weight to the ADA/ADAAA when the weight itself amounts to a disability.

The authors note that, in general the ADA and ADAAA do not protect a severely overweight employee whose weight is tantamount to a disability, unless the weight is linked to an independent disability. The authors note that there is a presumption that an overweight person is at least partially to blame for his weight, and a belief that an overweight person is lazy and lacks self-control, both traits detrimental to career advancement (and which studies have shown is an inaccurate assumption). The authors compare the bias against a severely obese person due to preconception that he is responsible for his weight problem to an individual who develops lung cancer due to smoking.

A few courts have begun to find a disability in a few cases of severe obesity, regardless of whether the individual’s weight is linked to an independently recognized disability. See, e.g., EEOC v. Resources for Human Development, Inc., 827 F.Supp.2d 688, 69*1 (E.D. La. 2011). Most courts, however, require an ADA/ADAAA claimant to prove an independent medical condition caused his obesity. This is, of course, different than a plaintiff whose weight prohibits him from eligibility, despite the fact that he is of average weight. For instance, Tudyman v. United Airlines, 608 F.Sup.. 739 (C.D. Cal. 1984) is a case in which an airline employee’s body-building resulted in his being too heavy according to the airline’s weight requirements. The court in California determined that, since he was still within the average weight, he did not suffer from a disability within the terms of the ADA.

We recommend that employers make their employment decisions based on candidates’ qualifications, experience, and performance. For more information regarding employment law, contact the Goosmann Law Firm at info@goosmannlaw.com or call 712-226-4000.