Recent court rulings could make weight an issue in hiring

In 2007, Adam Childers, a cook at a restaurant chain called Boston’s The Gourmet Pizza, injured his back while at work. Doctors determined that Childers was overweight and without weight-loss surgery, the back injury couldn’t be fixed. Childers was advised to undergo weight-loss surgery and the company was forced to pay for it as part of the Workers’ Compensation claim.

The company argued that Childer’s weight constituted a pre-existing condition for which it was not responsible. But the Indiana Court of Appeals ruled differently, saying that the employee’s pre-existing obesity, combined with his back injury and subsequent weight gain, formed a new work-related “single injury” the employer was responsible for treating.

There was a similar case in August in which the Oregon Supreme Court ruled that an employer was responsible for paying for weight-loss surgery for an employee who needed a knee replacement but had to lose weight first.

Although such cases are still rare, I can see how paranoid employers might use it against hiring people who are considered “obese.” (According to data from The Centers for Disease Control and Prevention, about two-thirds of Americans are overweight, and 27 percent — about 72 million — are obese.)

The overweight, like smokers, are not protected by the ADA and haven’t historically had much success claiming they were discriminated against.

There’s also the definition of “obese” to contend with. As defined by the National Institutes of Health, you are obese if you have a Body Mass Index (BMI) of 30 and above. (A BMI of 30 is about 30 pounds overweight.) A BMI is a person’s weight in kilograms divided by his or her height in meters squared.

There’s really no good weapon to fight against discrimination based on weight, but states can create insurance pools similar to the “second injury funds” established to encourage employers to hire disabled individuals. The funds help employers pay for pre-existing disabilities further complicated by workplace injuries.