ethical dilema of fdsljk sdjf d sfjdhf dsskdjh kdjsh sdkhjs skhsd skjhs;sdjk h

7/29/2019 ethical dilema of fdsljk sdjf d sfjdhf dsskdjh kdjsh sdkhjs skhsd skjhs;sdjk h

1/14

Weight Discrimination, inthe American Workplace:Ethical Issues and Analysis Mark V Roehling

ABSTRACT. Research providing consistent evidenceof pervasive discrimination against overweight jobapplicants and employees in the American workplaceraises important questions for organizational stake-holders. To what extent is the disparate treatment ofjob applicants or employees based on their weightethically justified? Are there aspects of weight dis-crimination that make it more acceptable than dis-crimination based on other characteristics, such asrace or gender? What operational steps can employerstake to address concerns regarding the ethical treat-ment of overweight individuals in the workplace? Thisarticle investigates these and related questions. Itspurpose is to provide information and analysis thatwill assist organizations in formulating ethicalresponses to a widespread phenomenon: weight dis-crimination in the workplace. Although its focus isthe American workplace, the proposed employerethical obligations and the practical guidance that isprovided are viewed as generalizing across countriesand cultures.KEY WORDS: employment law, equal opportunity,obesity, weight discrimination

An em ployer need s to fill two jo b o pen ings, andit has to choose between just three applicants.This means that only one of the applicants willnot get a job . The applicants have identical objec-tive, job related qualifications (e.g., educationalbackground, work experience) . They differ ,however, on certain personal characteristics. Oneapplicant has a history of serious mental illness,one is a convicted felon who has served hissentence, and one is obese. Wbich of the threeapplicants does not get hired?

The answer suggested by Kennedy andHomant's (1984) study of the effects of various

stigmas on employment decisions is that theobese appl icant would not be chosen. Theirfinding that overweight job applicants are judgedmore harshly than ex-felons or applicants with ahistory of mental illness is consistent with agrowing research literature investigating weightdiscrimination in employment settings. A com-prehensive review of that l i terature found thatstudies using a variety of methods (e.g. labora-tory simulated job decisions, surveys of obeseworkers, economic data) provide consistentevidence of weight discrimination at virtuallyevery stage of the employment cycle, including:career counseling, selection, placement, com-pensation, promotion, discipline, and discharge(Roehling, 1999). The reviewed studies indicatethat overweight individuals are rated less desir-able as subordinates, co-workers, and bosses, andthat the effect of weight discrimination may begreater than the effect of discrimination based onother characteristics such as race or gender.Recent studies continue to confirm Roehling's(1999) conclusion that the hterature provides"so be ring " evidence of significant, consistentweight discr iminat ion in employment (e .g. ,Crawley, 2001; Haskins and Ransford, 2000).

The overwhelming evidence of pervasiveweight discr iminat ion in the American work-place raises important questions for organizationalstakeholders. To whiat extent is the disparatetreatm ent of jo b applicants or employees basedon th eir we ight ethically justified? A re thereaspects of weight discrimination that make itmore acceptable than discrimination based onother characteristics, such as race or gender?What operational steps can employers take toaddress concerns regarding the ethical treatmentof overweight individuals in the workplace? This

Journal of Ethics 40: 177-189, 2002.


2/14

178 Mark V. Roehlingarticle investigates these and related questions. Itspurpose is to provide information and analysisthat will assist organizations in formulatingethical responses to a widespread ph eno me no n:weight discriminat ion in the American work-place.

The remainder of the article is organized inthree sections. Consistent with Gatewood andCarroll's (1991) conceptual framework, it beginsby looking at the law as a source of mandatorystandards for the ethical use of weight in employ-ment decisions. The analysis reveals that exceptin one state and in several municipalities, thereare very few direct legal constraints on employers'use of weight in employment decisions. Thereare, however, reasons to be concerned that dis-crimination based on weight may violate legalprohibitions against employment practices thathave a differentially negative effect based on sex,race or age. The second section initiates thediscussion of discretionary or "extra-legal" stan-dards for the ethical use of weight in employ-ment decisions. Four arguments that have beenrelied up on to justify w eight discrim ination areidentified and briefly evaluated in light of supportfor the principle of equal opportunity in employ-ment. The third section proposes three employerobligations in formulating ethical responses to theweight discriminat ion phenomenon that areviewed as generalizing across countries, andprovides practical guidance regarding steps thatemployers should consider in addressing theirethical obligations in this area.

Mandatory (legal) standards for the use ofweight in employment decisionsIn the United States the extent to which thereare legal constraints on the use of weight inemployment decisions (e.g., hiring, promoting,etc.) varies greatly depending on the specificstate (s) and m unicipalities in w hic h an organ iza-tion operates. The vast majority of Americanemployers need only be concerned about federalfair employment laws in this area. Therefore, thefederal legal standards will be discussed first,followed by a brief discussion of the one state lawand several municipal ordinances that provide

further constraints on the use of weight iemployment decisions.

Federal Law: Title VII of the Civil Rights Act(CRA) of 1991Title VII of the CRA of 1991 does not identifweight as a protected characteristic, and as result, it does not provide obese individuals direprotection against employer discrimination duto their weight (McDermott, 1995). This meanfor example, that an employer was able to defena claim of sex discrimination brought by a 27pound female telemarketer by establishing thshe was discriminated against based on weighnot sex (no overweight employees, male ofemale, were ever promoted outside sales positiodue to concerns about how they would bperceived; Marks v. NCA, Inc., 1999). There arhowever, two circumstances where the use oemployee weight as a criterion in an emp loymendecision may result in illegal discrimination bason characteristics that are protected by Title VII (srace, age). The circumstances involve the diparate treatment and disparate impact categoriesdiscrimination.Disparate treatment discrimination occurs whan employer treats some less favorably than othebecause of their sex, race, national origin oother protected characteristic. The differentiapplication of weight standards, formal oinformal, to members of protected classes maconstitute illegal disparate treatment discrimination. Of particular concern is the use of morstringent weight standards for women. Studieconducted in both work and non-work set t ingindicate that overweight women are evaluatemore negatively than overweight men (e.gBellizzi et al., 1989; Harris et al., 1982; Marantand Stenoien, 1998; Pagan and Davila,1997Pingitore et al. , 1994; Register and William1990). An example of illegal sex discriminatioresulting from the disparate application of weighstandards is provided by Frank v. United Airline(2000). The court determined that Unitedweight restriction program treated employeedifferently based on sex because the maximumweights for male flight attendants was based o


3/14

Weight Discrimination in the American Workp lace 179weight tables for men with large body frames,while the maximum weights for female fiightattendants was based on weight tables for femaleswith medium body frames.If it is established that an employer appliedmore stringent weight standards to one protectedgroup versus another, then the employer mustestablish that the weight standard is a bona fideoccupational qualification ( B F O Q ) f or t h e j o b i nquestion. That defense is only available to anemployer if it can show that the essence of theemployer's business operation would be under-mined by not applying the weight standard dif-ferently across protected groups {Diaz v. PanAmerican World Airways, Inc., 1971 ). T he difficultyof establishing the BFOQ defense is illustratedby Cerdom v. Continental Airlines, Inc. (1982) , acase in which the employer sought to defend itspolicy of applying more stringent weight stan-dards to female fiight attendants by arguing thatits competitive strategy included featuring attrac-tive fiight attendants, and therefore, being aslender female was a B F O Q for the jo b inquestion. The court rejected this argument,holding that customer preference unrelated toability to do the jo b cann ot justify a we ightpolicy that discriminated against females.

An employer's use of formal or informalweight standards may involve illegal discrimina-tion if, although neutral on its face, the rule hasa significant disparate impact on a protected classand it cannot be defended (Larson and Larson,1998). For example, an African Americanwoman who was denied a hostess- traineeposition because her hip measurements exceededthe maximum allowed by the employer's heightand weight chart filed a disparate impact dis-crimination claim with the EEOC based on theargument that, because of genetic differences, theemployer's hip measurement standard had adisproportionate effect on African Americanwomen (EEOC Dec. No. 80-5) . The r isk thatan employer weight rule that is neutral on itsface may have an adverse impact on a protectedgroup exists because obesity is more commonamong certain groups. For example, obesityoccurs more frequently among females versusmales, African Americans and Hispanics versusWhites, and older versus younger Americans

(Surgeon General 's Report , 1988; The MerckManual, 1997, Chapter 140, pp. 685-687). Thus,an ostensibly neutral weight rule, applied evenlyto all groups, may screen out substantially morefemales, African Americans, Hispanics, and olderapplicants or employees. It should be noted thateven if a neutral weight rule or practice has anadverse impact on a protected group, it may stillbe legally permissible if the employer can estab-lish that the rule or practice is job related andconsistent with business necessity ( 42 U C S S e c t .2000e-2(k)(l)(A)(iii)). To discharge this burden,the employer would have to establish that thechallenged weight related practice is linked toemp loyees' actual ability to perform the jo b inquestion (Larson and Larson, 1998).

Limited protection under federal disability lawOverview. Federal laws prohibiting discrimina-tion in the workplace against people with dis-abilities may also provide overweight employeeslimited protection against discrimination. TheRehabihtat ion Act of 1973 (RHA) prohibi tsemployment discrimination against qualifiedindividuals with disabilities by holders of gov-ernment contracts, recipients of federal grants,and government agencies and departments. It wasaugmented by the Americans With DisabilitiesAct of 1990 (ADA), legislation that extends theprohibition to private employers and state andlocal entities. The RHA and ADA have paralleldefinitions of "disability," and cases decidedunder either act are expected to apply to claimsbrought under the other (42 US.C. Sect. 794(d)(Supp. 1992) (Lindeman and Grossman, 1997).Therefore, the two acts will be discussedtogether.In order to invoke the ADA's or RHA's pro-tection, a plaintiff must establish that he or sheis an "individual with a disability," within themeaning of the acts, who is otherwise qualified forthe jo b in question. This includes anyone w hohas a physical or mental disability that "substan-tially limits one or more . . . major life activi-ties" of the individual, a record of suchimpairment, or who is regarded as having suchan impairment . (42 US.C. 12102(2) (Supp V


4/14

180 Mark V Roehling1993)). The specific meaning of the quoted termswas left to be further developed by EEOCregulations and case law.

Although nei ther the ADA nor the RHAspecifically mentions obesity as a disability, theEEOC regulat ions implementing the ADA dospecifically exclude height or weight that iswithin the "normal" range and are not the resultof a physiological disorder (29 C.F.R. Sect.1630.2(h)). According to the EEOC regulations,coverage of obesity under the ADA will be infre-quent: "Except in rare circumstances, obesity isnot covered" (29 C.F.R. Sect. 1630.2(j)). Severalcases have been decided which provide additionalguidance regarding the circumstances underwhich obesity will be considered a protecteddisability. The following discussion of the caselaw is organized around the two primary formsof disability under the acts, actual and perceiveddisabilities, and the duty to provide reasonableaccommodations.Actual disability. In deciding whether a plaintiffhas an actual disability covered by the ADA orRHA, the courts have emphasized the viewexpressed in the EEOC regulation's that coverageof obesity will be a "rare occurrence." In orderto establish an actual disability, an employee mustbe able to prove either that he or she is eithermorbidly obese (100% over ideal weight), orsuffering from obesity th at is a sym pto m of aphysiological condition, an d that as a result of thiscondition he or she is substantially limited in oneor more major Ufe activities {Cook v. Rhode Island,1963; Francis v. City of Meriden, 1997; see alsoE E OC Amicus Brief, 1993). Neither of theseways of establishing an actual disability is likelyto protect the vast majority of those who arediscriminated against for being overweight.*Perceived disability. In order to state a "regardedas " or perceived disability claim, a plaintiff mustallege that the employer perceived him or her ashaving an "impairment" within the meaning of thestatutes, and that the employer discriminatedagainst the plaintiff on that basis {Cook v. RhodeIsland, 1993). That is, the basis for discrimina-tion must be an employer's belief, howevererroneous, that the plaintiff suffered from an

impairment that, if i t truly existed, would bcovered under the statutes. In cases involvinalleged weight-based disability discriminatiothis means the plaintiff must establish that themployer perceived that the plaintiff was eithmo rbidly obese or suffering from a weig ht c odition that is a symptom of a physiologicdisorder, and as a result of that condition he she is substantially limited in one or more majlife activity {Francis v. City of Meriden, 199Andrews v. State of Ohio, 1997).Reasonable accommodations for overweight empIn addition to the usual ban on engaging in dicriminatory acts , when i t comes to protectedisabilities (RHA, ADA) the law requiremployers to make "reasonable accommodtions." Th at is, it is no t en ou gh to refrain frodiscriminating against an applicant or employbased on these characteristics; employers mutake affirmative steps to accommodate thedisabilities unless doing so would result in aundue hardship on the employer's business (2C.F.R. Sect . 1630). "Reasonable accommodtion" generally refers to the necessary adjusments to facilities or jobs and w^ork environmento ensure equal opportunities for individuals widisabilities (42 U.S.C. Sect. 12111(9)(1994)Factors considered in determining whether accommodation imposes an undue hardship othe employer include the nature and cost of taccommodation, the nature of the employeoperations, and the financial resources of temployer.

Examples of reasonable weight-related accommodations include providing specially orderuniform s, a specially ord ered reinforced chaand temporary light duty {McDonald v. StateKansas, 1995). The court has also commentthat "unless absenteeism rises to a such a levthat the applicant is no longer 'otherwise quafied'," the law requires the employer to bear somabsenteeism as a burden involved in making resonable accommodations {Cook, 1993, p. 27Finally, it has been held that an accommodatithat wo uld eliminate an essential function of "toverweight employee's job is not reasonable amatter of law, and that the ADA does not requthe employer to create a new position to accom


5/14

Weight Discrimination in the American Workp lace 18 1modate a d i sab led worker {McDonald v. State ofKansas, 1995) .

State and municipal lawsFair employment laws (FEPs). Only one s t a t e ,Michigan, has a FEP law that specifically pro-hibits discrimination in employment based onweight (Michigan Compiled Laws Sect. 37.2102,1977). The law makes "weight" a protected char-acteristic without limiting the protection tospecified levels of weight or obesity. The pro-tected characteristic status of weight means thatunlike the limited protection offered by TitleVII, plaintiffs do not need to link their claim toany other protected characteristics such as sex orrace. Also, if it is established that an employerused weight as a criterion in an employmentdecision, the employer will be required to justifyits actions by establishing that the weight crite-rion is a B F O Q for the jo b in q uestion.

There are also several cities and counties thathave local laws which prohibit discriminationbased on weight or physical appearance, whichwould seem to clearly cover body weight (e.g.,Howard County, Maryland; Madison, Wisconsin;San Francisco, California; Santa Cruz, California;Urbana, Illinois; Washington, DC). The scope ofthe protection against weight-based discrimina-tion provided by these municipal ordinancesapproximates that provided by the Michigan law.Obesity as a protected disability under state laws. A llfifty states and the District of Columbia havesome form of statutory or constitutional prohi-bi t ion forbidding employment discriminat ionagainst the disabled (Lindeman and Grossman,1997). State disability laws employ a range ofsometimes somewhat nebulous definitions ofwhat constitutes a "disability." A review of thevarious specific statutory provisions is beyond thescope of this article. However, it may be gener-ally observed that: a) it is common for statecourts to rely on federal definitions of disabledindividuals in interpreting the state statutes(Larson and Larson, 1998); b) the majority of thestate weight-based discrimination claims havebeen denied; but, c) some state disability laws

have been interpreted as providing somewhatbroader protect ion than the ADA or RHA. Themost notable example is the New York statedisability law. It has been interpreted as recog-nizing the condition of "gross obesity" itself is adisability, and does not require a showing of asubstantial impairment of major life activity {StateDivision o f Hum an Rights v. Xerox Corporation,1985).

It may be legal (in most Americanjurisdictions), but is it ethical?Equal opportunity in employment and the limits ofthe lawThe concept of equal opportuni ty in employ-m ent provides that jo b applicants and em ployeesshould be free to compete equally on the basisof merit , and they should not be discriminatedagainst based on personal characteristics that areunrelated to performance (Buckholz andRosenthal, 1998). Discussions of the conceptinvoke a wide range of ethical perspectives,including just ice (Huang and Ru bin , 1997),rights (Rowan, 2000), and stigma theory(Minnow, 1990). These ethical perspectivesconverge to provide substantial support for theproposi t ion that equal opportuni ty in employ-ment should be viewed as an ethical imperative.While federal law and state fair employmentlaws in the Un ited States frequently reference"equal employment opportuni ty", they do notfully embrace the equal opportunity principle.Rather, federal and state laws identify a limitedset of characteristics that are given special pro-tection ("protected characteristics" such as sex,race, age, etc.), leaving employers legally free todiscriminate based on personal characteristics thatare not enumerated - even if the characteristicsare unrelated to job performance. Thu s,depending on the personal characteristics inquestion, and the specific jurisdiction, legalstandards may differ from the ethical standardsreflected in the concept of equal opportunity.

In regard to weight, in Michigan and thosemunicipalities that have ordinances prohibitingdiscrimination in employment based on weight.


6/14

182 Mark V Roehlinglegal and ethical standards essentially overlap.Consistent with the equal opportunity concept,in those jurisdiction s weigh t canno t be taken intoaccount in an employment decision unless theweight criterion sought to be applied is relatedto jo b perfo rma nce. How ever, in the vastmajority of Am erican legal jurisdictions, exceptfor the very few overweight individuals whoqualify as "disabled" under the ADA or state lawsprohibiting disability discrimination, employersare legally free to discrim inate against jo b app li-cants and employees based on their weight. Inthose jurisdictions, so long as the employerapplies the weight criterion equally across thelegally designated protected groups, employerscan refuse to hire, promote, or equally compen-sate "non-disabled" individuals based on theirweight. Our focus now turns to the latterjurisdictions and employer conduct that, althoughlegally permissible, may violate the ethical stan-dards reflected in the concept of equal oppor-tunity.

Proffered justifications for weight discriminationExisting empirical research (reviewed inRoehling, 1999), law review articles debatingproposed legal protections against weight dis-crimination (e.g., Korn, 1997), and interviews ofmanagers making employment decisions indicatethat many decision makers believe that thedisparate treatment of overweight job applicantsand employees is wholly justified (legally andethically). The following discussion identifies andbriefly evaluates the bases for that belief.Predicted lower performance levels. R e s e a r c h d o c u -ments the existence of a wide range of negativestereotypes pertaining to performance relatedcharacteristics of overweight individuals. Studiescarefully controlling for objective qualificationsindicate that compared to their normal weightcoun terparts , overweight jo b applicants andemployees are evaluated as less conscientious("lazy"), less able to get along with customersand co-workers, and less intelligent (e.g., Bellizziet al., 1989; Klesges et al., 1990; Larkin andPines, 1979). Based on these research findings.

and a mountain of anecdotal evidence, it is clethat one of the primary reasons overweight joapplicants and employees receive negative treament is the belief that they possess a number undesirable characteristics that cause them to bpoorer performers on the job .T ha t belief, if valid, could provide a justifiction that is consistent with the concept of equopportuni ty. However, while there may blimited circumstances wh ere a carefully co nducted job analysis might indicate that weight related to the performance of a specific jonei ther theoret ical arguments nor empiricevidence support the view that overweighemployees are, in general, poorer performers. I

fact, a review of diverse literatures (managemeneconomics, sociology, medicine, psychology, lawidentified only one reported study that investgated the relationship between employees' bodweight and an objective measure of actual joperformance. Contrary to the widely held stereotype, that study found that heavier life insurancsalespeople, both male and female, had signifcantly higher sales than salespeople who wercloser to their ideal weight (Murrey, 1980).Reacting to the bias of others. There i s a l so ev idencthat some people choose to discriminate againsoverweight applicants not because they personally hold negatively biased, stereotypical views ooverweight employees, but because they perceivpressure from others to do so. According trational bias theory (Larwood and Gattike1985), as a result of perceived external pressure(e.g., from superiors or clients), there arinstances where engaging in discrimination seemjustified to an individual, even though he or shmay personally prefer to treat others equallyDecision makers yielding to these pressures arsaid to display a "rational bias," which is vieweas an intentional, instrumental form of discrimination (Trentham and Larwood, 1998).

An anecdotal example of rational discrimination was described to the author by a 5'6", 32pound professional assistant who was summarildischarged by her immediate supervisor. For ovesix years the professional assistant had enjoyean excellent relationship with her supervisorreceiving high performance ratings each year


7/14

Weight Discrimination in the American Workplace 183However when the supervisor's new boss, adistrict manager, visited their local office for thefirst time and saw the obese assistant, he beganpressuring the supervisor to discharge the obeseassistant because "she doesn't fit the image wewant to project." The supervisor eventuallyacceded to the district manager's pressure anddischarged the assistant, apologetically citingconcerns regarding how the district managerwould evaluate him if the obese assistant wasal lowed to remain. Rat ional discriminat iontheory may explain why some managers dis-criminate against the overweight. However, i tsexplanation - that some people are driven todiscriminate by "rational" self interest ca nhardly be view ed as an ethical justifica tion fortheir action.Blameworthiness: "It is their own fault". Discrimina-tion based on weight has also been justified basedon the argument that, unlike race or gender,body w^eight is not an immutable characteristic(Solovay, 2000). At the heart of this argument isthe belief that being overweight is a voluntarycondition, and therefore, discrimination againstthe overweight should be permissible. Theassumption that overweight people could loseweight and be thin if they only had the willpower is pervasive in American society (Solovay,2000). Research indicates that this belief is notcorrect, at least in regard to many individuals.Although the exact causes of obesity are not fuUyunderstood or widely agreed on, there appearsto be a general consensus in the medical com-munity that the causes of body weight arecomplex, and include psychological , environ-mental, and physiological or genetic factors(Greenwood and Pi t tman-Waller , 1988; Pool ,2001). Studies of identical twins reared apart, inparticular, provide compelling evidence thatgenetics play a major role in determining aperson's weight. A recent review of such studiesconcluded that their findings indicate that, onaverage, about 70% of the difference in weightfrom one person to the next is caused by geneticdifferences (Pool, 2001). Other research indicatesthat individuals with a deficiency in the leptinhormone, which has the job of telling the brainhow much fat the body is carrying, are essen-

tially destined to be obese (Pool, 2001). Finally,a growing body of recent research suggests thatthere can be serious health costs associated withpersistent efforts to lose weight, including lifethreatening conditions, and it is not clear that thecost of dieting is likely to outweigh the benefitsfor many individuals (Berg, 1999; Cogan, 1999).In summary, although the causes of obesity arenot well understood, it is clear that for manypeople, their overweight condition is not in anyrealistic sense a mutable characteristic. Is it ethicalto discriminate against all overweight job appli-cants and employees because there may be someoverw eight jo b applicants or employees wh ocould be thinner if they exercised greater control?This kind of s tereotype-based discriminat ioninvolves the very "wrong" that is the focus ofstigma theory. Further, i t would seem thatneith er rights nor justice perspectives wo uldsupport the denial of equal opportuni ty inemployment based on unfounded or "over"generalizations regarding suspected deficienciesin the wiU power of overweight applicants andemployees.^Expected higher costs. According to employeraccounts, some employers are biased against theoverweight "as a matter of economics." That is,they avoid hiring or retaining the overweightbecause of the greater costs perceived to beassociated with overweight employees (e.g.,higher insurance premiums, greater absenteeism,the cost of special accommodations). Forexample, a branch manager employed by aregional bank described for the author how herefrained from hiring an otherwise "qualified andpleasant" obese women based on his conclusionthat, because of her size, if the obese applicantwas hired he would also have to purchase a newoffice chair and desk. Another example of costdriven weight-bias is reported in the StateDivision of Huma n Rights v. Xerox Corporation(1985), a case in which it was determined thatthe company's rejection of the plaintiff was basedin part on the company doctor's concern that theplaintiff's obesity would have a negative impacton Xerox's insurance premiums.

The extent to which there are additional costsassociated with overweight employees remains a


8/14

184 Mark V. Roehlingcontested issue. Promoters of workplace weightloss programs frequently claim that greater healthinsurance claims and higher absenteeism areassociated with overweight employees (e.g. .Smith and McGhan, 1996). Others argue thatwhile the medical l i terature has docum en t edelevated risk factors in obese people, these factorsfail to translate into higher mortality rates andhealth related costs, and that the negative effectsof obesity have been overestimated due to thefailure to consider the negative effects of dieting(e.g., Gaesser, 1996).

There is, however, some credible evidence thatat least at the high end of the weight cont inuum,obesity is associated with higher absenteeism(e.g., Leigh, 1991; Parkes, 1987) and healthrelated costs (e.g. . Burton, 1998; Pronk et al.,1999). For example, a study of 3066 bankemployees indicated that the average annualhealth care costs of employees "at risk" due totheir weight was $2274 versus $1499 for the "notat risk" group (Burton, 1998).^ To what extent ,if any, is it ethical to allow potential additionalcosts associated with overweight employees as agroup to influence hiring, promotion, and reten-tion decisions regarding individual employees?This challenging question will be addressedfurther in the discussion of the proposedemployer ethical obligations that follows in thenext section.

Proposed minimum employer ethicalobligations and practical guidanceBased on the preceding discussion and additionalconsiderations identified below, I propose that, asa minimum, employers have three ethical obliga-tions relating to use of jo b applicant or employeeweight in employment decisions. The proposedobligations are viewed as providing minimunstandards of ethical employer conduct in thatthere are some employers who have additional,higher obligations due to either the law in theirjurisdiction(s) (e.g. , Michigan) or conduc t ontheir part that "raises the ethical bar" (e.g., anemployer's explicit promise that all employeeswill be treated equally, and with dignity andrespect). Finally, although this paper has discussed

weight discr iminat ion in the context of thAmerican workplace, it is contemplated that thfollowing proposed employer obligations aapplicable across countries.Proposi t ion 1: Employers are obligatedmake reasonable efforts to make emploment decisions based on valid work relatinformation regarding job appl icantemployees rather than stereotypical infeences ^bout the overweight.W hether v iewed as based in notions of justicrights, or other theories, of ethical conduct, thequal opportunity principle requires that emplo

ment decisions be based on meri t . There is napparent basis for asserting that employers haa compelling interest in relying on stereotypicinferences rather than job related informatioO n the contrary, from a human resource maagement perspective, the proposed obligationsimply a matter of sound, scientific practicEmployers' reliance on unfounded stereotypintroduces systematic bias or "e r r o r " in thdecision process. Over time, that error wnegatively affect human resource productivitand ultimately, the successful performance of torganization.

In determining what actions may be involvin "reasonable efforts" to make employmedecisions based on valid work related informtion, it is impor tant to keep in mind that steretypes flourish in highly subjective, unstructurdecision-making processes. Structured decisiomaking forces more attentive and systemaprocessing of greater amounts of relevainformation, reducing (if not precluding) tautomatic use of stereotypes to infer whatapplicant or employee will be l ike (Heilma1997). Compared to m anagem en t "by rulethumb," most scientific human resource maagement practices involve increased structure thimproves the objectivity and job relatednessmanagement's actions toward employees. Sevehuman resource management activities have pat icular importance in discharging employeobligation to make decisions based upon worelated information rather than stereotypicbeliefs about the overweight.


9/14

Weight Discrimination in the American Workplace 185First, it is essential that the knowledge, skills,abilities or other competencies necessary tosuccessfully p erfo rm a jo b be evaluated a nd

specified prior to the employment decision. Thisprocess, referred to as job or competency analysis,involves systematically collecting informationfrom subject ma tter experts (e.g., jo b inc um -bents, supervisors, or industrial psychologistsw ho are famihar w ith the job) regarding the keytasks associated with a jo b and th e com peten ciesneeded to successfully perform those key tasks.If a jo b or co mp etency analysis has not iden ti-fied a specific weight criterion as important tothe successful perfo rmanc e of the jo b in question,then weight should not be taken into accountin the employment decision.Second, highly subjective traditional jobinterviews should be replaced by structured jobinterviews. Job interviews contin ue to be a fre-quently used, if not the most frequently used,selection too l. Unfortunately, a long history ofresearch suggests that the w ay jo b interviews havebeen traditionally carried out results in assessmentof applicants that are unreliable (Hunter andHunter, 1984) and biased against certain groups(including the overweight; Pingitore et al., 1994).However, by increasing the structure of the inter-view (e.g., using standardized questions dealingwith situations hkely to arise on the job , b en ch -mark answers, multiple interviewers ratinginterviewees on specified dimensions, andtraining interviewers), the validity of the inter-view as a predictor of jo b pe rforman ce can besignificantly improved and its bias against certaingroups eliminated (Roehling et al. , 1999).Third, an effort should be made to identifyand employ other validated selection tests toassess apphcant/employee characteristics that arehkely to be the subject of weight-based stereo-types. For example, research indicates thatoverweight job applicants are viewed as lessconscientious (Klesges et al., 1990; Larkin andPines, 1979). Rather than relying on that stereo-typic belief, there are readily available pencil andpaper measures of the personality trait conscien-tiousness (Hogan et al., 1996). These tests havebee n validated for a wid e range of job s and wo rksettings, and they do not appear to reflect a biastoward any group (Hogan et al., 1996). Research

published by the National Academy of Sciencesalso indicates that common assumptions regardingoverweight employees' physical capabilities arelikely to be inaccurate (Mariott and Grumstrup-Scott, 1992). Therefore, instead of relying onassumptions regarding the physical capabilities ofoverweight applicants or employees, tests shouldbe used that are designed to assess any specificjob related physical abilities that are identified inthe jo b or com pete ncy analysis (e.g., loadcarrying ability, lifting ability, stamina; Mariottand Grumstrup-Scott , 1992).Proposition 2: Employers are obligated to notdiscriminate against overweight applicants/employees based on cost considerationsunless higher costs: 1) are demonstrable, 2)outweigh other utility considerations, and3) will result in an undue hardship to theemployer.Ladd et al. (1994) argue that discriminationagainst workers who are likely to incur higherthan average health costs violates principles ofself-determinat ion, autonomy, just ice, andprivacy, and therefore, cannot be morally justi-fied. While this is a reasonable argument, basedon the considerat ion of both employee andemployer interests. Proposition 2 strikes asomewhat different balance. It provides that anemployer can consider costs, but only under verylimited circumstances. Three conditions must bemet. First, the costs must be demonstrable. Thismeans that there must be credible evidence thatcan be appropriately generalized to the appli-cant /employee in quest ion. Assumptions basedmerely on stereotypical beliefs about the over-

weight are, by definition, not credible. It isparticularly important that in considering healthcare costs, evidence of higher costs not be overgeneralized. For example, research findingsregarding the health costs associated with highlevels of obesity should not be viewed asevidence of the costs associated with moderateor mild levels of obesity. Also, there should becaution in considering costs that are not causedby obesity, but merely associated with obesity dueto some underlying medical condition that leadsto weight gain (e.g., diabetes). It may be inap-


10/14

186 Mark V Roehlingpropriate to generalize such costs to individualswhen, al though the individual is overweight ,there is no evidence that the person has theunderlying medical condition (and therefore, noreason to predict the person will incur the costsassociated with the condition).

Second, the demonstrable costs must outweighother utility considerations. "Utility" refers tothe bottom-line effectiveness of a practice, andit involves a comparison of cost and benefits. Formost jobs, even if it could be demonstrated thatthere are additional health insurance costs asso-ciated with employees' weight, those costs arehkely to be minor compared to the benefits ofhiring the most qualified employee based onvalid, performance related criteria. This obser-vation seems to be implicitly understood inregard to the additional costs associated withother job applicant characteristics. For example,even though it is more costly to provide healthinsurance coverage to employees with familiescompared to those without, there is no evidencethat the "additional costs" of hiring employeeswith families are influencing the hiring decisionsof a significant number of employers. Utilityconsiderations suggest that additional costs shouldnever be viewed as a strict bar to hiring over-weight employees. Rather, employers shouldfocus on using valid selection devices (e.g., struc-tured interview ratings, personality tests, carefullyselected biographical data) to predict who will bethe best performers as accurately as possible, andtrade-offs between predicted performance leveland demonstrated health related costs should bemade very reluctantly - if at all.The third condition imposed by Proposition 2is that the contemplated costs must involve anundue hardship to the employer. In this context,the term "undue hardship" refers to costs thatwould involve an unreasonable burden on theemployer when considered in light of theemployer's financial resources and the likely effectof incurring the cost on the employer's opera-t ions. Even relatively high estimates of additionalhealth care costs associated with obese employeesare unlikely to involve an undue hardship formost employers.As a practical matter, the application ofProposition 2's three-pronged test means that

there are very few circumstances where thconsideration of additional costs would be considered justified. A n exam ple of a circum stancwh ere an em ployer might be justified in takininto a ccoun t costs associated with an jo b applcant's weight involves a small employer, with feresources, that is facing financial difficulties. Sucan employer w ould be justified in taking in taccount demonstrable evidence that the hiring oan obese person would require the employer tpurchase new office furniture if incurr ing thcost of the furniture could be reasonably vieweas creating an undue hardship for the employeFinally, before discussing the third proposeemployer obligation, it should be emphasized thProposition 2 involves a minimum obligation. IMichigan and municipalities with similar lawadditional organizational costs thought to bassociated with overweight employees are not legal justification for discrim inating againoverweight individuals, and therefore, employein those jurisdictions have a similar ethical obligation not to consider costs.Prop ositio n 3: Em ployers have an affirmativ

obligation to take reasonable steps tprevent foreseeable weight-based disparattreatment of female job applicants anemployees.As indicated earlier, there is consistenevidence that overweight women are judgemore harshly than similarly overweight men, anas a result, women are much more likely to bdiscriminated against based on weight in employment settings. For example, research has founthat overweight women receive less desirable joassignments than overweight men (Bellizzi et al1989), and that while even mildly obese womeearn significantly less than their non-obescounterparts, there is not a similar wage penaltamong mildly obese men (Maranto and Stenoien1998; Pagan and Davila, 1997; Register anWilliams, 1990). In short, the disparate treatmenof women in employment set t ings based oweight is not merely a theoretical possibility, is a practical likelihood.The foreseeable nature of sex-based discrimnation linked to weight, and the obligation o


11/14

Weight Discrimination in the American Workplace 187all American employers not to permit suchdiscrimination among their agents andemployees, creates an ethical (and arguably legal)employer obligation to take reasonable steps toprevent the weight-based disparate treatment offemale job applicants and employees. All of thesteps suggested in the discussion followingProposition 1, above, would help to dischargethis obligation (the use of jo b analysis, struc turedinterviews, and other validated selection tests).In addition, research suggests that training thatraises an individual's awareness of weight andgender related stereotypical beliefs will tend toreduce reliance on stereotypes in employmentdecisions (Marti et al., 2000). Also, reliance onweight-based stereotypes should be furtherreduced by introducing greater accountabi l i tyin employment decision-making processes(Ro ehling et al. , 1999). Steps providing acco unt-ability in hiring and promotion decisions includeusing multiple decision makers or panels,requiring decision makers to identify the specificgrounds for accepting or rejecting applicants, andproviding routine oversight or review of hiringand promotion decisions. At a more general level,accountability for the biased treatment ofemployees may be increased by proactivelyseeking feedback from employees regarding theirexperiences in the organization. For example,performance appraisal processes that includesubordinate evaluation of supervisors (e.g., 360degree feedback) and employee surveys mightinclude items that assess employees' beliefsregarding the extent to which their treatment, orthe treatment of employees in the organizationin general, is based on jo b related con sidera-tions.

Concluding commentsWeight discriminat ion in the American work-place is a widespread phenomenon that has asignificant negative impact on the lives of untoldindividuals. It is likely that it also has a negativeimpact on workforce effectiveness through itsintroduction of systematic error in the employ-ment decision-making process. However, exceptin one state and several municipalities, the law

does little to address weight discrimination in theworkplace. This means that fair-minded organi-zations need to be vigilant in recognizing theethical issues associated with the disparate treat-ment of overweight employees and in formu-lating ethical responses to predictable weightdiscrimination. The goal of this article was toassist organizations in that endeavor.

Notes' Less than one perce nt of those wh o are obese(0.5%) are morbidly obese (Merck Manual, 1997).The 99.5% of the obese Americans who are notmorbidly obese would have to prove that their weighthas a physiological cause in order to establish an actualdisability under the ADA or RHA. This is not an easyburden for plaintifF-employees to meet becausealthough the medical community considers obesity tobe the result of physiological, psychological, and envi-ronmental factors, the exact causes of obesity are notfully understood or widely agreed on (Greenwoodand Pittman-Waller, 1988; Pool, 2001).^ In addition to refuting the belief that people couldlose weight if they only exercised will power, at amore fundamental level it has also been argued thatwhether obesity is immutable is entirely irrelevant(Korn, 1997). Proponents of this argument note thatAmerican employment law prohibits discriminationbased on other characteristics that are either mutable(e.g., religious beliefs) or the result of voluntarybehavior (HIV positive status).^ Th e "at r isk" group included m en with a BodyMass Index (BMI) greater than 27.8 and women witha BMI greater than 27.3. BMI is calculated bydividing an employee's weight in kilograms by thesquare of his/her height in meters.

ReferencesAndrews v. State of Ohio, 104 F3d 803 (CA 6 1997).Bellizzi, J. A., M. L. Klassen andJ. J. Belonax: 1989,'Stereotypical Beliefs About Overweight andSmoking and Decision Making in Assignments toSales Terri tories' , Perceptual and Motor Skills 69 ,419-429 .Buckholz, R.A. and S. B. Rosenthal: 1998, Business

Ethics: The Pragmatic Path Beyond Principles to Process(Prentice Hall, Upper Saddle River, NJ).

Burg, F. M .: 1999, 'He alth R isks Associated W ith


12/14

18 8 Mark V RoehlingWeight Loss and Obesity Treatment Programs',Journal of Social Issues 55(2) , 277-297.Burton, W. N., C.Y. Chen, A. B. Schultz and D. W.Edington: 1998, 'The Economic Costs AssociatedW ith B ody M ass Index in a W orkplac e', Jowma/ ofOccupa tional and Environmen tal Medicine 40(9),786 -92 .Coga n, J. C : 1999, 'A National Health Agenda:Providing the Public With Accurate Information' ,Journal of Social Issues 55(2), 383-400.

Cook V. Rhode Island Department of Mental Health, 10F.2d 17; 2 AD 1476 (1st Cir. 1993).Crawley, J.: 2001 , 'Body W eight and Wom en's LaborMarket Outco mes ' , Jo int Center for Poverty ResearchSummaries 2(1).Diaz V. Pan American World Airways, Inc., 442 R2d 385(5th Cir. 1971).EEOC Amicus Brief, 10 R2d 17 (1st Cir. 1993),reprinted in Americans with Disabil i t ies ActManual (BNA) No. 23, 100:7057 (Dec. 1993).

Francis v. City of Meriden, 129 F.3d 281; 7 AD Cases955 (CA 2 1997).Frank v. United Airlines, 256 F.3d 845 (9th Cir. 2000).Gaesser, G. A.: 1996, Big Fat Lies: The Truth AboutYour Weight and Your Health (Fawcett Colum^bine,

New York).Gatewood, R. D. and A. B. Carroll : 1991,'Assessment of the Ethical Performance ofOrganizational Members' , Academy of ManagementReview 16(4), 6 6 7 - 6 9 1 .

Gerdom v. Continental Airlines, Inc., 692 F2d. 602; 30FEP 235 (9th cir. 1982) (en bane), cert denied, 460U.S. 1074 (1983).Gree nwo od, M . R. C. and V. A. Pit tman-W aller:1988, 'Weight Control: A Complex, Various, andControversial Problem', in R. Frankle and M. Yang(eds.). Obesity an d Weight Control (Aspen Publishers,Rockvi l le , MD).Haskins, K. M. and H. E. Ransford: 2000, 'TheRelationship Between Weight and Career PayoffsAmong Women ' , Social Forum 14(2), 295-318.Harris, M. B., RJ. Harris and S. Bochner: 1982, 'Fat,Four-Eyed and Female: Stereotypes of Obesity,Glasses, and Gender', Journal of Applied SocialPsychology 6, 503-516.Haung, W. and SE. Rubin: 1997, 'Equal Access toEmployment Oppor tuni t ies for People wi thMental Retardation: An Obligation of Society, '

Journal of Rehabilitation 63 , 2 7 - 3 3 .Heilman, M. E.: 1997, 'Sex Discrimination and theAffirmative Action Remedy: The Role of SexStereotypes' , Journal of Business Ethics 16(9),877-889 .

Hogan, R. , J . Hogan and B. W. Rober ts : 199'Personahty Measurement and EmploymeDecisions' , American Psychologists 51(5) , 469-4Hu nter , J. E. and R. H . Hu nte r: 1 984, 'Validity an

Util i ty of Alternative Predictors of JoPerformance' , Psychological Bulletin 96, 7298.Kennedy, D. B. and R. J. Homant: 1984, 'PersonnManagers and the Stigmatized Employee' , Journ

of Employment Counseling 2 1 , 8994.Klassen, M. L., C. R. Jasper and R. J. Harris: 199'The Role of Physical Appearance in ManageriDecisions ' , Journal of Business and Psychology181-198 .Klesges, R . C , M . L. Klem , C. L. Han son, L. HEck, J. Ernst , D. O'L aug hhn , A. Garrot and RRife: 1990, 'T he Effects of App licant's H eal

Status and Qualif ications on Simulated HirinD ec is io ns ', Jowrwfl/q/ Ofoe5i(, 14 , 527535.Korn, J. B.: 1997, 'Fat', Boston University Law Revi

11 , 2 5 - 6 7 .Ladd, R., L. Pasquerella and S. Smith: 199'Liabil i ty-Driven Ethics and the Impact on HiriPractices: Restr icting the Hiring of Workers WiPotentially High Health Care Costs', Business EthQuarterly 4 , 321-333 .

Larkin, J. C. and H . A. Pines: 1979, 'N o Fat PersoNeed Apply: Experimental Studies of tOverweight Stereotype and Hiring PreferencSociology of W ork and Occupations 6, 312327.Larson, L. K. and A. Larson: 1998, EmploymeDiscrimination (Matthew Bender, New York).Larw ood, L. and U E. Gattiker: 1985, 'Ratio nal Biand Interorganizational Power in the Employmeof Management Consul tants ' , Group anOrganization Studies 10, 317.Leigh, P.: 1991, 'Employee Job Attr ibutes Predictors of Absenteeism in a National Sampof Wo rkers: Th e Im portan ce of Health anDangerous Working C ondi t ions ' , Social ScienceMedicine 33(2), 127-137.

Lindeman, B. and P. Grossman.: 1997, EmploymeDiscrimination Law, 3rd ed. (The Bureau National Affairs, Inc., Washington, DC).Marks V. National Communications Association, InFsupp. 322; 1999 U S . Dist. Lexis 16474.Maranto, C. L. and A. F Stenoien: 1997, 'WeigDiscrimination: A Multidisciplinary Analysi

Industrial Relations Researchers Associations AnnConference, Chicago.M ariott , B. M . and J. Grum strup-Sco tt: 1992, BoComposition an d Physical Perform ance: Applicatithe Military Services (National academy PresWashington DC) .


13/14

Weight Discrimination in the American Workp lace 189Marti , M. W., D. M. Bobier and R. S. Baron: 2000,'Right Before Our Eyes: The Failure to RecognizeNon-Prototypical Forms of Prejudice ' , Group

Processes an d Intergroup Relations 3(4) , 403-418.McDermot t , C. M.: 1995, 'Should Employers beAllowed to Weigh Obesity in Their EmploymentDecisions? Cook v. Rhode Island, Department ofMental Health, Retardation and Hospitals ' , Th e

University of Kansas Law Review 44, 199-216.McDonald v. State of Kansas, 880 F Supp. 1416 (D.Kan.1995).Merck Manual of Medical Information: 1997, R. Berkow(ed.) ( Merck R esearch L aboratories, Wh itehouseStation, NJ).Minnow, M.: 1990, Making A ll The Difference:Inclusion, Exclusion, and American Law (Cornel l

University Press, Ithaca, New York).Murrey, J. H.: 1980, 'The R ole of Height and Weightin the Performance of Salesmen of Ordinary LifeInsurance' , fournal of the American Society of CLU34, 5 6 - 6 4 .Pagan, J. A. and A. Davila: 1997, 'Obesity,Occupat ional At ta inment , and Earnings ' , SocialScience Quarterly 78, 756-770.Parkes, K. R.: 1987, 'Relative Weight, Smoking, andM ental H ealth as Pred ictors of Sickness andAbsence from Work', fournal of Applied Psychology72, 275-286 .

Pingitore, R., B. L. Dugoni, R. S. Tindale and B.Spring: 1994, 'Bias Against Overweight JobApplicants in a Simulated Em ployme nt Interview ',fournal of Applied Psychology 79, 909-917.Pool , R. : 2001, Fat: Fighting the Obesity Epidemic(Oxford University Press, Oxford).Pronk, N. P , W H. Agnes and P O'Connor : 1999,'Obesity, Fitness, and the Willingness toCommunicate and Heal th Care Costs ' , Medicine

and Science in Sports and Ex ercise 33(11), 15351543.Register , C. A. and D. R. Will iams: 1990, 'WageEfFects of Obesity Among Young Workers', SocialScience Quarterly 7 1 , 130-141 .Roeh ling, M . V: 1999, 'Weight-Based Discriminationin Employment: Psychological and Legal Aspects',Personnel Psychology 52(4) , 969-1016.Ro eh hng , M . V., J .E. Campion and R.D. A rvey:1999, 'Unfair Discrimination in the EmploymentInterview', in R. Eder and G. Ferris (eds.). The fobInterview: Theory, Research, and Practice (SagePublications, Newbury, CA).Row an, J . R. : 200 0, 'The M oral Foundat ion ofEmployee Rig hts' , Jowma/ of Business Ethics 24(4),3 5 5 - 3 6 1 .

Smith, M. D., and W. McGhan.: 1996, 'Flir t ing withthe Financiais of Fat', Business and Health 14(7),53 -54 .Solovay, S.: 1999, Tipping the Scales offustice: FightingWeight-Based Discrimination (Prometheus Books,Amherst , NY) .State Division of Hum an Rights v. Xerox Corporation,480 N.E.2d 695, 696 (N.Y 1985).Surgeon General's Report on Nutrition and Health: 1988,U.S. Department of Health and Human Services.Trentham, S. and L. Larwood: 1998, 'GenderDiscrimination and the Workplace: An

Examination of Rational Bias Theory' , Sex Roles38, 1.

School of Labor and Industrial Relations,Michigan State University,

East Lansing, Michigan,U.S.A.

E-mail: [email protected]


14/14

ethical dilema of fdsljk sdjf d sfjdhf dsskdjh kdjsh sdkhjs skhsd skjhs;sdjk h

Documents