Let’s say you’re the owner of a manufacturing company with well paying, desirable jobs so there is never a shortage of applicants. In reviewing your insurance costs you notice that the large majority of those with health issues that caused lost work time were employees that are overweight.
Can you legally tell your HR person to specifically state in “jobs available” ads that you are not hiring overweight and obese applicants?
Ummmmm, no. Think of it this way - could you notice that a large majority of those using maternity leave were women, which raises your costs, and so state that you will not hire women of childbearing age?
That would be a variant of age discrimination which is (I think) not allowed under the law, there are also laws governing not discriminating against women taking maternity leave. I don’t think being obese, in and of itself, is a protected class of any sort (at this time).
There are a few localities where being obese is a legally protected class.
This site lists those places (in the US) as: Michigan, San Francisco, CA, Santa Cruz, CA, Washington, DC.
http://www.bigfatblog.com/complete-list-all-places-where-fat-discrimination-illegal-us
Obesity is not a protected class based on federal law. However, if obesity results from or itself consists of a disability in a particular person’s case, that person could protest the discrimination under the Americans with Disabilities Act.
Discrimination against pregnant women is illegal due to the Pregnancy Discrimination Act. Pregnancy discrimination really has nothing to due with age discrimination, since the federal Age Discrimination in Employment Act only protects those 40 and above from age discrimination. (There are some local laws that make any discrimination based on age illegal.)
I searched for Job Discrimination Weight, and among the cites I found was this. It’s from a California attorney, but has some interesting content:
Over here you can put anything in ads. It is quite common to state required age, nationality, and religion.
Define overweight. Would a person 20 or 30 lbs over be a serious health risk. What if he worked out and was physically strong. Is his health a bigger risk than a thinner but sedentary person.
Strippers, dancers .some entertainers , people working at heath clubs, I can see weight mattering. But mostly it is irrelevant.
I know this is GQ, so you’re looking for facts. As indicated above, there is no federal law I can find that prohibits you from hiring only people below a certain BMI, for example, although there are some state laws.
If I may veer off into IMHO territory for a moment, I don’t think it would be a good idea to put in an ad. First of all, as gonzomax says, there is a wide range of what individuals believe is “overweight” or “obese.” You might deprive yourself of some really good employees who believed that they would not be competitive. And of really good – and thin – employees who’d look at that and think it did not sound like the kind of place they’d like to work in. Or who would fear that if they did gain weight they would be fired.
Adding an anecdote from the old days, my mom told me about a factory she worked in where pregnant women were routinely let go as soon as they began to show, with the explanation that they would not fit efficiently into the workplace with an enlarged abdomen. Of course, some of the men invoking this rule had enough of a belly to be permanently carrying full-term triplets.
Not quite a direct answer to the OP, but Hooters has fought off more than a few lawsuits concerning their hiring practices for servers.
In Massachusetts, Comcast states very clearly that people over 270lbs are not welcome to apply due to “safety”.
Dunno if it is legal but it has been a year now they have had the standard script statewide. The last install tech I talked to was clearly over 300 pounds so it makes me think they do not really check.
We’re getting into uncharted territory here.
There are already employers refusing to hire smokers- even people who smoke only in their own homes and on their own time. Thus far, they haven’t been told they can’t do that.
ASSUMING employers are free to discriminate against smokers (that’s not certain yet, but assume it’s deemed acceptable), the question becomes: is being fat legally more akin to being black/gay/a woman or more akin to being a smoker?
I think it’s much closer to being a smoker. Someone who’s black or gay or whatever can’t do anything about it. Someone who’s fat CAN do something about it. Except in some very extreme cases, it is not about genetics. Our genetics in America are the same as the people in Europe or wherever else our ancestors came from, and you don’t see so many fat people over there.
So if they COULD do something about it, it would be reasonable to expect them to do so, and discriminate against them if they didn’t? 
I mean really, to me this looks like the equivalent of saying, “Oh, those poor blacks and gays and women, they can’t change themselves to be like the rest of us, so we’ll just accept them, defect and all.”
And some people DO argue that gay people can change. (Not saying that’s right, but they sure believe it.)
I’m not arguing that fat people or anyone else should be discriminated against, though, I’m just responding to the question of whether it’s a choice or not.
I think it easier to not be gay than it is to not be fat.
Fat people are compelled to put things in a suitable orifice every now and again or die.
Gays are just put out temporarily.
What seems to be missing in this thread is a focus on the fact that specific laws determine what is illegal discrimination and what is not. It really doesn’t have that much to do with what is fair, what is a choice, etc. The legality or not of this stuff depends on what laws have been passed.
States are in fact rather split on whether it is legal to discriminate against smokers. Where states protect smokers from employment discrimination, it is often under the concept of protecting “legal conduct outside the workplace.” This site lists 21 states that protect smokers from employment discrimination: http://www.workrights.org/issue_lifestyle/ld_legislative_brief.html Federal law is pretty much silent on the issue. Keep in mind that there is tobacco money to lobby for these laws. The obese would not have such a ready source of funds.
Federal law is also silent on employment discrimination based on homosexuality. Again, some local laws do prohibit such discrimination.
If you’re offering benefits, you probably can require that your prospective employees pass a physical administered by the insurance company. If they find that the weight is disproportionate, you might be within your rights to hire on a probationary basis – demonstrate that you are trying to remedy the problem, same way a smoker could enter a cessation program. A physical also could rule out a metabolism problem, or could find that, even though a person weighed more than the average for his height, he was healthy and did not have any significant risks.
That way you would not be discriminating against overweight applicants, but showed both tolerance and concern.
Precisely. The protected classes for Federal Employment Discrimination Law are: race, religion, sex, age, and disability.
“Fat” is not a protected class, unless it coincides with another protected class, such as disability or age. However, if skinny people of all ages, creeds and colors are hired, no problem. Unless specific local laws prohibit it, you absolutely can discriminate against fat people. You are a jerk, but it is legal.
For the record, “Ugly” is also not a protected class - an employer can hire only hot people. Abecrombie & Fitch does this, and as long as they hire hot people of all races, ages, creeds and colors, its perfectly fine.
My uncle was a plumber. His boss would always get on his case for gaining weight. His partner, on the other hand, was always in demand because he was a short skinny guy who could easily enter small crawl spaces and attic roofs which were too small for the average guy.
Employers take safe ways out. For instance me and my recent college grads never ever get a follow up saying we didn’t get the job. Together my little group has been on over 500 interviews collectively and not one has received a “thanks but we went with someone else.”
This amazes my parents who tell me they used to get personal rejections or at least a postcard in the mail.
Employers simply say “we went with a better qualified candidate.” They don’t want to get sued they say nothing.
I ran into trouble with a reference as my current job refuses to give anymore than my hire, date and verify my salary. I interviewed for one job and they said I HAD to find someone at the company to give me a reference before they’d even consider me. No one I worked with was willing to risk their job by calling the company back and going against H/R which says “ALL requests for references go through them, no exceptions.”
So your question is basic an employer MAY discriminate for any reason that is NOT illegal. For instance being African America or gay (in some areas only, other gays are not a protected class.). But the bottom line is no one is ever gonna admit the real reason they aren’t hiring you, it’s easier and safer to say “we went with another candidate and let it drop.”
In the old days stewardesses were not even allowed to wear glasses. They really had to conform to an image. But it does hurt business, I am currently a personal trainer and I’m the only trainer that is in shape. My co-workers know what to do to train people but they are not practicing it. So they look bad and we get less clients.