Weight Discrimination, in the American Workplace: Ethical Issues and Analysis

Mark V Roehling

ABSTRACT. Research providing consistent evidence of pervasive discrimination against overweight job applicants and employees in the American workplace raises important questions for organizational stakeholders. To what extent is the disparate treatment of job applicants or employees based on their weight ethically justified? Are there aspects of weight discrimination that make it more acceptable than discrimination based on other characteristics, such as race or gender? What operational steps can employers take to address concerns regarding the ethical treatment of overweight individuals in the workplace? This article investigates these and related questions. Its purpose is to provide information and analysis that will assist organizations in formulating ethical responses to a widespread phenomenon: weight discrimination in the workplace. Although its focus is the American workplace, the proposed employer ethical obligations and the practical guidance that is provided are viewed as generalizing across countries and cultures. KEY WORDS: employment law, equal opportunity, obesity, weight discrimination

An employer needs to fill two job openings, and it has to choose between just three applicants. This means that only one of the applicants will not get a job. The applicants have identical objective, job related qualifications (e.g., educational background, work experience). They differ, however, on certain personal characteristics. One applicant has a history of serious mental illness, one is a convicted felon who has served his sentence, and one is obese. Wbich of the three applicants does not get hired? The answer suggested by Kennedy and Homant's (1984) study of the effects of various

stigmas on employment decisions is that the obese applicant would not be chosen. Their finding that overweight job applicants are judged more harshly than ex-felons or applicants with a history of mental illness is consistent with a growing research literature investigating weight discrimination in employment settings. A comprehensive review of that literature found that studies using a variety of methods (e.g. laboratory simulated job decisions, surveys of obese workers, economic data) provide consistent evidence of weight discrimination at virtually every stage of the employment cycle, including: career counseling, selection, placement, compensation, promotion, discipline, and discharge (Roehling, 1999). The reviewed studies indicate that overweight individuals are rated less desirable as subordinates, co-workers, and bosses, and that the effect of weight discrimination may be greater than the effect of discrimination based on other characteristics such as race or gender. Recent studies continue to confirm Roehling's (1999) conclusion that the hterature provides "sobering" evidence of significant, consistent weight discrimination in employment (e.g., Crawley, 2001; Haskins and Ransford, 2000). The overwhelming evidence of pervasive weight discrimination in the American workplace raises important questions for organizational stakeholders. To whiat extent is the disparate treatment of job applicants or employees based on their weight ethically justified? Are there aspects of weight discrimination that make it more acceptable than discrimination based on other characteristics, such as race or gender? What operational steps can employers take to address concerns regarding the ethical treatment of overweight individuals in the workplace? This

Journal of Business Ethics 40: 177-189, 2002. 2002 Kluwer Academic Publishers. Printed in the Netherlands.

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Mark V. Roehling further constraints on the use of weight in employment decisions.

article investigates these and related questions. Its purpose is to provide information and analysis that will assist organizations in formulating ethical responses to a widespread phenomenon: weight discrimination in the American workplace. The remainder of the article is organized in three sections. Consistent with Gatewood and Carroll's (1991) conceptual framework, it begins by looking at the law as a source of mandatory standards for the ethical use of weight in employment decisions. The analysis reveals that except in one state and in several municipalities, there are very few direct legal constraints on employers' use of weight in employment decisions. There are, however, reasons to be concerned that discrimination based on weight may violate legal prohibitions against employment practices that have a differentially negative effect based on sex, race or age. The second section initiates the discussion of discretionary or "extra-legal" standards for the ethical use of weight in employment decisions. Four arguments that have been relied upon to justify weight discrimination are identified and briefly evaluated in light of support for the principle of equal opportunity in employment. The third section proposes three employer obligations in formulating ethical responses to the weight discrimination phenomenon that are viewed as generalizing across countries, and provides practical guidance regarding steps that employers should consider in addressing their ethical obligations in this area.

Federal Law: Title VII of the Civil Rights Act (CRA) of 1991 Title VII of the CRA of 1991 does not identify weight as a protected characteristic, and as a result, it does not provide obese individuals direct protection against employer discrimination due to their weight (McDermott, 1995). This means, for example, that an employer was able to defend a claim of sex discrimination brought by a 270 pound female telemarketer by establishing that she was discriminated against based on weight, not sex (no overweight employees, male or female, were ever promoted outside sales position due to concerns about how they would be perceived; Marks v. NCA, Inc., 1999). There are, however, two circumstances where the use of employee weight as a criterion in an employment decision may result in illegal discrimination based
on characteristics that are protected by Title VII (sex,

Mandatory (legal) standards for the use of weight in employment decisions

In the United States the extent to which there are legal constraints on the use of weight in employment decisions (e.g., hiring, promoting, etc.) varies greatly depending on the specific state (s) and municipalities in which an organization operates. The vast majority of American employers need only be concerned about federal fair employment laws in this area. Therefore, the federal legal standards will be discussed first, followed by a brief discussion of the one state law and several municipal ordinances that provide

race, age). The circumstances involve the disparate treatment and disparate impact categories of discrimination. Disparate treatment discrimination occurs when an employer treats some less favorably than others because of their sex, race, national origin or other protected characteristic. The differential application of weight standards, formal or informal, to members of protected classes may constitute illegal disparate treatment discrimination. Of particular concern is the use of more stringent weight standards for women. Studies conducted in both work and non-work settings indicate that overweight women are evaluated more negatively than overweight men (e.g., Bellizzi et al., 1989; Harris et al., 1982; Maranto and Stenoien, 1998; Pagan and Davila,1997; Pingitore et al., 1994; Register and Williams, 1990). An example of illegal sex discrimination resulting from the disparate application of weight standards is provided by Frank v. United Airlines (2000). The court determined that United's weight restriction program treated employees differently based on sex because the maximum weights for male flight attendants was based on

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weight tables for men with large body frames, while the maximum weights for female fiight attendants was based on weight tables for females with medium body frames. If it is established that an employer applied more stringent weight standards to one protected group versus another, then the employer must establish that the weight standard is a bona fide
occupational qualification (BFOQ) for the j o b in

question. That defense is only available to an employer if it can show that the essence of the employer's business operation would be undermined by not applying the weight standard differently across protected groups {Diaz v. Pan
American World Airways, Inc., 1971). The difficulty

(Surgeon General's Report, 1988; The Merck Manual, 1997, Chapter 140, pp. 685-687). Thus, an ostensibly neutral weight rule, applied evenly to all groups, may screen out substantially more females, African Americans, Hispanics, and older applicants or employees. It should be noted that even if a neutral weight rule or practice has an adverse impact on a protected group, it may still be legally permissible if the employer can establish that the rule or practice is job related and
consistent with business necessity (42 U C S Sect.

of establishing the BFOQ defense is illustrated

by Cerdom v. Continental Airlines, Inc. (1982), a

2000e-2(k)(l)(A)(iii)). To discharge this burden, the employer would have to establish that the challenged weight related practice is linked to employees' actual ability to perform the job in question (Larson and Larson, 1998).

case in which the employer sought to defend its policy of applying more stringent weight standards to female fiight attendants by arguing that its competitive strategy included featuring attractive fiight attendants, and therefore, being a slender female was a BFOQ for the job in question. The court rejected this argument, holding that customer preference unrelated to ability to do the job cannot justify a weight policy that discriminated against females. An employer's use of formal or informal weight standards may involve illegal discrimination if, although neutral on its face, the rule has a significant disparate impact on a protected class and it cannot be defended (Larson and Larson, 1998). For example, an African American woman who was denied a hostess-trainee position because her hip measurements exceeded the maximum allowed by the employer's height and weight chart filed a disparate impact discrimination claim with the EEOC based on the argument that, because of genetic differences, the employer's hip measurement standard had a disproportionate effect on African American women (EEOC Dec. No. 80-5). The risk that an employer weight rule that is neutral on its face may have an adverse impact on a protected group exists because obesity is more common among certain groups. For example, obesity occurs more frequently among females versus males, African Americans and Hispanics versus Whites, and older versus younger Americans

Limited protection under federal disability law

Overview. Federal laws prohibiting discrimination in the workplace against people with disabilities may also provide overweight employees limited protection against discrimination. The Rehabihtation Act of 1973 (RHA) prohibits employment discrimination against qualified individuals with disabilities by holders of government contracts, recipients of federal grants, and government agencies and departments. It was augmented by the Americans With Disabilities Act of 1990 (ADA), legislation that extends the prohibition to private employers and state and local entities. The RHA and ADA have parallel definitions of "disability," and cases decided under either act are expected to apply to claims brought under the other (42 US.C. Sect. 794(d) (Supp. 1992) (Lindeman and Grossman, 1997). Therefore, the two acts will be discussed together. In order to invoke the ADA's or RHA's protection, a plaintiff must establish that he or she is an "individual with a disability," within the meaning of the acts, who is otherwise qualified for the job in question. This includes anyone who has a physical or mental disability that "substantially limits one or more . . . major life activities" of the individual, a record of such impairment, or who is regarded as having such an impairment. (42 US.C. 12102(2) (Supp V

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Mark V Roehling impairment that, if it truly existed, would be covered under the statutes. In cases involving alleged weight-based disability discrimination, this means the plaintiff must establish that the employer perceived that the plaintiff was either morbidly obese or suffering from a weight condition that is a symptom of a physiological disorder, and as a result of that condition he or she is substantially limited in one or more major life activity {Francis v. City of Meriden, 1997; Andrews v. State of Ohio, 1997). Reasonable accommodations for overweight employees. In addition to the usual ban on engaging in discriminatory acts, when it comes to protected disabilities (RHA, ADA) the law requires employers to make "reasonable accommodations." That is, it is not enough to refrain from discriminating against an applicant or employee based on these characteristics; employers must take affirmative steps to accommodate their disabilities unless doing so would result in an undue hardship on the employer's business (29 C.F.R. Sect. 1630). "Reasonable accommodation" generally refers to the necessary adjustments to facilities or jobs and w^ork environments to ensure equal opportunities for individuals with disabilities (42 U.S.C. Sect. 12111(9)(1994)). Factors considered in determining whether an accommodation imposes an undue hardship on the employer include the nature and cost of the accommodation, the nature of the employer's operations, and the financial resources of the employer. Examples of reasonable weight-related accommodations include providing specially ordered uniforms, a specially ordered reinforced chair, and temporary light duty {McDonald v. State of Kansas, 1995). The court has also commented that "unless absenteeism rises to a such a level that the applicant is no longer 'otherwise qualified'," the law requires the employer to bear some absenteeism as a burden involved in making reasonable accommodations {Cook, 1993, p. 27). Finally, it has been held that an accommodation that would eliminate an essential function of "the overweight employee's job is not reasonable as a matter of law, and that the ADA does not require the employer to create a new position to accom-

1993)). The specific meaning of the quoted terms was left to be further developed by EEOC regulations and case law. Although neither the ADA nor the RHA specifically mentions obesity as a disability, the EEOC regulations implementing the ADA do specifically exclude height or weight that is within the "normal" range and are not the result of a physiological disorder (29 C.F.R. Sect. 1630.2(h)). According to the EEOC regulations, coverage of obesity under the ADA will be infrequent: "Except in rare circumstances, obesity is not covered" (29 C.F.R. Sect. 1630.2(j)). Several cases have been decided which provide additional guidance regarding the circumstances under which obesity will be considered a protected disability. The following discussion of the case law is organized around the two primary forms of disability under the acts, actual and perceived disabilities, and the duty to provide reasonable accommodations. Actual disability. In deciding whether a plaintiff has an actual disability covered by the ADA or RHA, the courts have emphasized the view expressed in the EEOC regulation's that coverage of obesity will be a "rare occurrence." In order to establish an actual disability, an employee must be able to prove either that he or she is either morbidly obese (100% over ideal weight), or suffering from obesity that is a symptom of a physiological condition, and that as a result of this condition he or she is substantially limited in one or more major Ufe activities {Cook v. Rhode Island, 1963; Francis v. City of Meriden, 1997; see also EEOC Amicus Brief, 1993). Neither of these ways of establishing an actual disability is likely to protect the vast majority of those who are discriminated against for being overweight.* Perceived disability. In order to state a "regarded as" or perceived disability claim, a plaintiff must allege that the employer perceived him or her as having an "impairment" within the meaning of the statutes, and that the employer discriminated against the plaintiff on that basis {Cook v. Rhode Island, 1993). That is, the basis for discrimination must be an employer's belief, however erroneous, that the plaintiff suffered from an

Weight Discrimination in the American Workplace modate a disabled worker {McDonald v. State of Kansas, 1995).

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State and municipal laws Fair employment laws (FEPs). Only one state,

have been interpreted as providing somewhat broader protection than the ADA or RHA. The most notable example is the New York state disability law. It has been interpreted as recognizing the condition of "gross obesity" itself is a disability, and does not require a showing of a substantial impairment of major life activity {State
Division of Human Rights v. Xerox Corporation,

Michigan, has a FEP law that specifically prohibits discrimination in employment based on weight (Michigan Compiled Laws Sect. 37.2102, 1977). The law makes "weight" a protected characteristic without limiting the protection to specified levels of weight or obesity. The protected characteristic status of weight means that unlike the limited protection offered by Title VII, plaintiffs do not need to link their claim to any other protected characteristics such as sex or race. Also, if it is established that an employer used weight as a criterion in an employment decision, the employer will be required to justify its actions by establishing that the weight criterion is a BFOQ for the job in question. There are also several cities and counties that have local laws which prohibit discrimination based on weight or physical appearance, which would 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 of the protection against weight-based discrimination provided by these municipal ordinances approximates that provided by the Michigan law.
Obesity as a protected disability under state laws. All

1985).

It may be legal (in most American jurisdictions), but is it ethical?

Equal opportunity in employment and the limits of the law

fifty states and the District of Columbia have some form of statutory or constitutional prohibition forbidding employment discrimination against the disabled (Lindeman and Grossman, 1997). State disability laws employ a range of sometimes somewhat nebulous definitions of what constitutes a "disability." A review of the various specific statutory provisions is beyond the scope of this article. However, it may be generally observed that: a) it is common for state courts to rely on federal definitions of disabled individuals in interpreting the state statutes (Larson and Larson, 1998); b) the majority of the state weight-based discrimination claims have been denied; but, c) some state disability laws

The concept of equal opportunity in employment provides that job applicants and employees should be free to compete equally on the basis of merit, and they should not be discriminated against based on personal characteristics that are unrelated to performance (Buckholz and Rosenthal, 1998). Discussions of the concept invoke a wide range of ethical perspectives, including justice (Huang and Rubin, 1997), rights (Rowan, 2000), and stigma theory (Minnow, 1990). These ethical perspectives converge to provide substantial support for the proposition that equal opportunity in employment should be viewed as an ethical imperative. While federal law and state fair employment laws in the United States frequently reference "equal employment opportunity", they do not fully embrace the equal opportunity principle. Rather, federal and state laws identify a limited set of characteristics that are given special protection ("protected characteristics" such as sex, race, age, etc.), leaving employers legally free to discriminate based on personal characteristics that are not enumerated - even if the characteristics are unrelated to job performance. Thus, depending on the personal characteristics in question, and the specific jurisdiction, legal standards may differ from the ethical standards reflected in the concept of equal opportunity. In regard to weight, in Michigan and those municipalities that have ordinances prohibiting discrimination in employment based on weight.

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legal and ethical standards essentially overlap. Consistent with the equal opportunity concept, in those jurisdictions weight cannot be taken into account in an employment decision unless the weight criterion sought to be applied is related to job performance. However, in the vast majority of American legal jurisdictions, except for the very few overweight individuals who qualify as "disabled" under the ADA or state laws prohibiting disability discrimination, employers are legally free to discriminate against job applicants and employees based on their weight. In those jurisdictions, so long as the employer applies the weight criterion equally across the legally designated protected groups, employers can refuse to hire, promote, or equally compensate "non-disabled" individuals based on their weight. Our focus now turns to the latter jurisdictions and employer conduct that, although legally permissible, may violate the ethical standards reflected in the concept of equal opportunity.

Proffered justifications for weight discrimination

and a mountain of anecdotal evidence, it is clear that one of the primary reasons overweight job applicants and employees receive negative treatment is the belief that they possess a number of undesirable characteristics that cause them to be poorer performers on the job. That belief, if valid, could provide a justification that is consistent with the concept of equal opportunity. However, while there may be limited circumstances where a carefully conducted job analysis might indicate that weight is related to the performance of a specific job, neither theoretical arguments nor empirical evidence support the view that overweight employees are, in general, poorer performers. In fact, a review of diverse literatures (management, economics, sociology, medicine, psychology, law) identified only one reported study that investigated the relationship between employees' body weight and an objective measure of actual job performance. Contrary to the widely held stereotype, that study found that heavier life insurance salespeople, both male and female, had significantly higher sales than salespeople who were closer to their ideal weight (Murrey, 1980).
Reacting to the bias of others. There is also evidence

Existing empirical research (reviewed in Roehling, 1999), law review articles debating proposed legal protections against weight discrimination (e.g., Korn, 1997), and interviews of managers making employment decisions indicate that many decision makers believe that the disparate treatment of overweight job applicants and employees is wholly justified (legally and ethically). The following discussion identifies and briefly evaluates the bases for that belief.
Predicted lower performance levels. Research docu-

ments the existence of a wide range of negative stereotypes pertaining to performance related characteristics of overweight individuals. Studies carefully controlling for objective qualifications indicate that compared to their normal weight counterparts, overweight job applicants and employees are evaluated as less conscientious ("lazy"), less able to get along with customers and co-workers, and less intelligent (e.g., Bellizzi et al., 1989; Klesges et al., 1990; Larkin and Pines, 1979). Based on these research findings.

that some people choose to discriminate against overweight applicants not because they personally hold negatively biased, stereotypical views of overweight employees, but because they perceive pressure from others to do so. According to rational bias theory (Larwood and Gattiker, 1985), as a result of perceived external pressures (e.g., from superiors or clients), there are instances where engaging in discrimination seems justified to an individual, even though he or she may personally prefer to treat others equally. Decision makers yielding to these pressures are said to display a "rational bias," which is viewed as 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", 320 pound professional assistant who was summarily discharged by her immediate supervisor. For over six years the professional assistant had enjoyed an excellent relationship with her supervisor, receiving high performance ratings each year.

Weight Discrimination in the American Workplace However when the supervisor's new boss, a district manager, visited their local office for the first time and saw the obese assistant, he began pressuring the supervisor to discharge the obese assistant because "she doesn't fit the image we want to project." The supervisor eventually acceded to the district manager's pressure and discharged the assistant, apologetically citing concerns regarding how the district manager would evaluate him if the obese assistant was allowed to remain. Rational discrimination theory may explain why some managers discriminate against the overweight. However, its explanation - that some people are driven to discriminate by "rational" self interest can hardly be viewed as an ethical justification for their action. Blameworthiness: "It is their own fault". Discrimination based on weight has also been justified based on the argument that, unlike race or gender, body w^eight is not an immutable characteristic (Solovay, 2000). At the heart of this argument is the belief that being overweight is a voluntary condition, and therefore, discrimination against the overweight should be permissible. The assumption that overweight people could lose weight and be thin if they only had the will power is pervasive in American society (Solovay, 2000). Research indicates that this belief is not correct, at least in regard to many individuals. Although the exact causes of obesity are not fuUy understood or widely agreed on, there appears to be a general consensus in the medical community that the causes of body weight are complex, and include psychological, environmental, and physiological or genetic factors (Greenwood and Pittman-Waller, 1988; Pool, 2001). Studies of identical twins reared apart, in particular, provide compelling evidence that genetics play a major role in determining a person's weight. A recent review of such studies concluded that their findings indicate that, on average, about 70% of the difference in weight from one person to the next is caused by genetic differences (Pool, 2001). Other research indicates that individuals with a deficiency in the leptin hormone, which has the job of telling the brain how much fat the body is carrying, are essen-

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tially destined to be obese (Pool, 2001). Finally, a growing body of recent research suggests that there can be serious health costs associated with persistent efforts to lose weight, including life threatening conditions, and it is not clear that the cost of dieting is likely to outweigh the benefits for many individuals (Berg, 1999; Cogan, 1999). In summary, although the causes of obesity are not well understood, it is clear that for many people, their overweight condition is not in any realistic sense a mutable characteristic. Is it ethical to discriminate against all overweight job applicants and employees because there may be some overweight job applicants or employees who could be thinner if they exercised greater control? This kind of stereotype-based discrimination involves the very "wrong" that is the focus of stigma theory. Further, it would seem that neither rights nor justice perspectives would support the denial of equal opportunity in employment based on unfounded or "over" generalizations regarding suspected deficiencies in the wiU power of overweight applicants and employees.^ Expected higher costs. According to employer accounts, some employers are biased against the overweight "as a matter of economics." That is, they avoid hiring or retaining the overweight because of the greater costs perceived to be associated with overweight employees (e.g., higher insurance premiums, greater absenteeism, the cost of special accommodations). For example, a branch manager employed by a regional bank described for the author how he refrained from hiring an otherwise "qualified and pleasant" obese women based on his conclusion that, because of her size, if the obese applicant was hired he would also have to purchase a new office chair and desk. Another example of cost driven weight-bias is reported in the State Division of Human Rights v. Xerox Corporation (1985), a case in which it was determined that the company's rejection of the plaintiff was based in part on the company doctor's concern that the plaintiff's obesity would have a negative impact on Xerox's insurance premiums. The extent to which there are additional costs associated with overweight employees remains a

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Mark V. Roehling weight discrimination in the context of the American workplace, it is contemplated that the following proposed employer obligations are applicable across countries. Proposition 1: Employers are obligated to make reasonable efforts to make employment decisions based on valid work related information regarding job applicants/ employees rather than stereotypical inferences ^bout the overweight. Whether viewed as based in notions of justice, rights, or other theories, of ethical conduct, the equal opportunity principle requires that employment decisions be based on merit. There is no apparent basis for asserting that employers have a compelling interest in relying on stereotypical inferences rather than job related information. On the contrary, from a human resource management perspective, the proposed obligation is simply a matter of sound, scientific practice. Employers' reliance on unfounded stereotypes introduces systematic bias or "error" in the decision process. Over time, that error will negatively affect human resource productivity, and ultimately, the successful performance of the organization. In determining what actions may be involved in "reasonable efforts" to make employment decisions based on valid work related information, it is important to keep in mind that stereotypes flourish in highly subjective, unstructured decision-making processes. Structured decisionmaking forces more attentive and systematic processing of greater amounts of relevant information, reducing (if not precluding) the automatic use of stereotypes to infer what an applicant or employee will be like (Heilman, 1997). Compared to management "by rule of thumb," most scientific human resource management practices involve increased structure that improves the objectivity and job relatedness of management's actions toward employees. Several human resource management activities have particular importance in discharging employers' obligation to make decisions based upon work related information rather than stereotypical beliefs about the overweight.

contested issue. Promoters of workplace weight loss programs frequently claim that greater health insurance claims and higher absenteeism are associated with overweight employees (e.g.. Smith and McGhan, 1996). Others argue that while the medical literature has documented elevated risk factors in obese people, these factors fail to translate into higher mortality rates and health related costs, and that the negative effects of obesity have been overestimated due to the failure to consider the negative effects of dieting (e.g., Gaesser, 1996). There is, however, some credible evidence that at least at the high end of the weight continuum, obesity is associated with higher absenteeism (e.g., Leigh, 1991; Parkes, 1987) and health related costs (e.g.. Burton, 1998; Pronk et al., 1999). For example, a study of 3066 bank employees indicated that the average annual health care costs of employees "at risk" due to their weight was $2274 versus $1499 for the "not at risk" group (Burton, 1998).^ To what extent, if any, is it ethical to allow potential additional costs associated with overweight employees as a group to influence hiring, promotion, and retention decisions regarding individual employees? This challenging question will be addressed further in the discussion of the proposed employer ethical obligations that follows in the next section.

Proposed minimum employer ethical obligations and practical guidance Based on the preceding discussion and additional considerations identified below, I propose that, as a minimum, employers have three ethical obligations relating to use of job applicant or employee weight in employment decisions. The proposed obligations are viewed as providing minimun standards of ethical employer conduct in that there are some employers who have additional, higher obligations due to either the law in their jurisdiction(s) (e.g., Michigan) or conduct on their part that "raises the ethical bar" (e.g., an employer's explicit promise that all employees will be treated equally, and with dignity and respect). Finally, although this paper has discussed

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First, it is essential that the knowledge, skills, abilities or other competencies necessary to successfully perform a job be evaluated and specified prior to the employment decision. This process, referred to as job or competency analysis, involves systematically collecting information from subject matter experts (e.g., job incumbents, supervisors, or industrial psychologists who are famihar with the job) regarding the key tasks associated with a job and the competencies needed to successfully perform those key tasks. If a job or competency analysis has not identified a specific weight criterion as important to the successful performance of the job in question, then weight should not be taken into account in the employment decision. Second, highly subjective traditional job interviews should be replaced by structured job interviews. Job interviews continue to be a frequently used, if not the most frequently used, selection tool. Unfortunately, a long history of research suggests that the way job interviews have been traditionally carried out results in assessment of applicants that are unreliable (Hunter and Hunter, 1984) and biased against certain groups (including the overweight; Pingitore et al., 1994). However, by increasing the structure of the interview (e.g., using standardized questions dealing with situations hkely to arise on the job, benchmark answers, multiple interviewers rating interviewees on specified dimensions, and training interviewers), the validity of the interview as a predictor of job performance can be significantly improved and its bias against certain groups eliminated (Roehling et al., 1999). Third, an effort should be made to identify and employ other validated selection tests to assess apphcant/employee characteristics that are hkely to be the subject of weight-based stereotypes. For example, research indicates that overweight job applicants are viewed as less conscientious (Klesges et al., 1990; Larkin and Pines, 1979). Rather than relying on that stereotypic belief, there are readily available pencil and paper measures of the personality trait conscientiousness (Hogan et al., 1996). These tests have been validated for a wide range of jobs and work settings, and they do not appear to reflect a bias toward any group (Hogan et al., 1996). Research

published by the National Academy of Sciences also indicates that common assumptions regarding overweight employees' physical capabilities are likely to be inaccurate (Mariott and GrumstrupScott, 1992). Therefore, instead of relying on assumptions regarding the physical capabilities of overweight applicants or employees, tests should be used that are designed to assess any specific job related physical abilities that are identified in the job or competency analysis (e.g., load carrying ability, lifting ability, stamina; Mariott and Grumstrup-Scott, 1992). Proposition 2: Employers are obligated to not discriminate against overweight applicants/ employees based on cost considerations unless higher costs: 1) are demonstrable, 2) outweigh other utility considerations, and 3) will result in an undue hardship to the employer. Ladd et al. (1994) argue that discrimination against workers who are likely to incur higher than average health costs violates principles of self-determination, autonomy, justice, and privacy, and therefore, cannot be morally justified. While this is a reasonable argument, based on the consideration of both employee and employer interests. Proposition 2 strikes a somewhat different balance. It provides that an employer can consider costs, but only under very limited circumstances. Three conditions must be met. First, the costs must be demonstrable. This means that there must be credible evidence that can be appropriately generalized to the applicant/employee in question. Assumptions based merely on stereotypical beliefs about the overweight are, by definition, not credible. It is particularly important that in considering health care costs, evidence of higher costs not be over generalized. For example, research findings regarding the health costs associated with high levels of obesity should not be viewed as evidence of the costs associated with moderate or mild levels of obesity. Also, there should be caution in considering costs that are not caused by obesity, but merely associated with obesity due to some underlying medical condition that leads to weight gain (e.g., diabetes). It may be inap-

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Mark V Roehling there are very few circumstances where the consideration of additional costs would be considered justified. An example of a circumstance where an employer might be justified in taking into account costs associated with an job applicant's weight involves a small employer, with few resources, that is facing financial difficulties. Such an employer would be justified in taking into account demonstrable evidence that the hiring of an obese person would require the employer to purchase new office furniture if incurring the cost of the furniture could be reasonably viewed as creating an undue hardship for the employer. Finally, before discussing the third proposed employer obligation, it should be emphasized that Proposition 2 involves a minimum obligation. In Michigan and municipalities with similar laws, additional organizational costs thought to be associated with overweight employees are not a legal justification for discriminating against overweight individuals, and therefore, employers in those jurisdictions have a similar ethical obligation not to consider costs. Proposition 3: Employers have an affirmative obligation to take reasonable steps to prevent foreseeable weight-based disparate treatment of female job applicants and employees. As indicated earlier, there is consistent evidence that overweight women are judged more harshly than similarly overweight men, and as a result, women are much more likely to be discriminated against based on weight in employment settings. For example, research has found that overweight women receive less desirable job assignments than overweight men (Bellizzi et al., 1989), and that while even mildly obese women earn significantly less than their non-obese counterparts, there is not a similar wage penalty among mildly obese men (Maranto and Stenoien, 1998; Pagan and Davila, 1997; Register and Williams, 1990). In short, the disparate treatment of women in employment settings based on weight is not merely a theoretical possibility, it is a practical likelihood. The foreseeable nature of sex-based discrimination linked to weight, and the obligation of

propriate to generalize such costs to individuals when, although the individual is overweight, there is no evidence that the person has the underlying medical condition (and therefore, no reason to predict the person will incur the costs associated with the condition). Second, the demonstrable costs must outweigh other utility considerations. "Utility" refers to the bottom-line effectiveness of a practice, and it involves a comparison of cost and benefits. For most jobs, even if it could be demonstrated that there are additional health insurance costs associated with employees' weight, those costs are hkely to be minor compared to the benefits of hiring the most qualified employee based on valid, performance related criteria. This observation seems to be implicitly understood in regard to the additional costs associated with other job applicant characteristics. For example, even though it is more costly to provide health insurance coverage to employees with families compared to those without, there is no evidence that the "additional costs" of hiring employees with families are influencing the hiring decisions of a significant number of employers. Utility considerations suggest that additional costs should never be viewed as a strict bar to hiring overweight employees. Rather, employers should focus on using valid selection devices (e.g., structured interview ratings, personality tests, carefully selected biographical data) to predict who will be the best performers as accurately as possible, and trade-offs between predicted performance level and demonstrated health related costs should be made very reluctantly - if at all. The third condition imposed by Proposition 2 is that the contemplated costs must involve an undue hardship to the employer. In this context, the term "undue hardship" refers to costs that would involve an unreasonable burden on the employer when considered in light of the employer's financial resources and the likely effect of incurring the cost on the employer's operations. Even relatively high estimates of additional health care costs associated with obese employees are unlikely to involve an undue hardship for most employers. As a practical matter, the application of Proposition 2's three-pronged test means that

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all American employers not to permit such discrimination among their agents and employees, creates an ethical (and arguably legal) employer obligation to take reasonable steps to prevent the weight-based disparate treatment of female job applicants and employees. All of the steps suggested in the discussion following Proposition 1, above, would help to discharge this obligation (the use of job analysis, structured interviews, and other validated selection tests). In addition, research suggests that training that raises an individual's awareness of weight and gender related stereotypical beliefs will tend to reduce reliance on stereotypes in employment decisions (Marti et al., 2000). Also, reliance on weight-based stereotypes should be further reduced by introducing greater accountability in employment decision-making processes (Roehling et al., 1999). Steps providing accountability in hiring and promotion decisions include using multiple decision makers or panels, requiring decision makers to identify the specific grounds for accepting or rejecting applicants, and providing routine oversight or review of hiring and promotion decisions. At a more general level, accountability for the biased treatment of employees may be increased by proactively seeking feedback from employees regarding their experiences in the organization. For example, performance appraisal processes that include subordinate evaluation of supervisors (e.g., 360 degree feedback) and employee surveys might include items that assess employees' beliefs regarding the extent to which their treatment, or the treatment of employees in the organization in general, is based on job related considerations.

does little to address weight discrimination in the workplace. This means that fair-minded organizations need to be vigilant in recognizing the ethical issues associated with the disparate treatment of overweight employees and in formulating ethical responses to predictable weight discrimination. The goal of this article was to assist organizations in that endeavor.

Notes
' Less than one percent of those who are obese (0.5%) are morbidly obese (Merck Manual, 1997). The 99.5% of the obese Americans who are not morbidly obese would have to prove that their weight has a physiological cause in order to establish an actual disability under the ADA or RHA. This is not an easy burden for plaintifF-employees to meet because although the medical community considers obesity to be the result of physiological, psychological, and environmental factors, the exact causes of obesity are not fully understood or widely agreed on (Greenwood and Pittman-Waller, 1988; Pool, 2001). ^ In addition to refuting the belief that people could lose weight if they only exercised will power, at a more fundamental level it has also been argued that whether obesity is immutable is entirely irrelevant (Korn, 1997). Proponents of this argument note that American employment law prohibits discrimination based on other characteristics that are either mutable (e.g., religious beliefs) or the result of voluntary behavior (HIV positive status). ^ The "at risk" group included men with a Body Mass Index (BMI) greater than 27.8 and women with a BMI greater than 27.3. BMI is calculated by dividing an employee's weight in kilograms by the square of his/her height in meters.

References Concluding comments

Weight discrimination in the American workplace is a widespread phenomenon that has a significant negative impact on the lives of untold individuals. It is likely that it also has a negative impact on workforce effectiveness through its introduction of systematic error in the employment decision-making process. However, except in one state and several municipalities, the law
Andrews v. State of Ohio, 104 F3d 803 (CA 6 1997). Bellizzi, J. A., M. L. Klassen andJ. J. Belonax: 1989, 'Stereotypical Beliefs About Overweight and Smoking and Decision Making in Assignments to Sales Territories', 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, 'Health Risks Associated With

188

Mark V Roehling Hogan, R., J. Hogan and B. W. Roberts: 1996, 'Personahty Measurement and Employment Decisions', American Psychologists 51(5), 469-477. Hunter, J. E. and R. H. Hunter: 1984, 'Validity and Utility of Alternative Predictors of Job Performance', Psychological Bulletin 96, 7298. Kennedy, D. B. and R. J. Homant: 1984, 'Personnel Managers and the Stigmatized Employee', Journal of Employment Counseling 21, 8994. Klassen, M. L., C. R. Jasper and R. J. Harris: 1993, 'The Role of Physical Appearance in Managerial Decisions', Journal of Business and Psychology 8, 181-198. Klesges, R. C , M. L. Klem, C. L. Hanson, L. H. Eck, J. Ernst, D. O'Laughhn, A. Garrot and R. Rife: 1990, 'The Effects of Applicant's Health Status and Qualifications on Simulated Hiring Decisions', Jowrwfl/q/^ Ofoe5i(, 14, 527535. Korn, J. B.: 1997, 'Fat', Boston University Law Review 11, 25-67. Ladd, R., L. Pasquerella and S. Smith: 1994, 'Liability-Driven Ethics and the Impact on Hiring Practices: Restricting the Hiring of Workers With Potentially High Health Care Costs', Business Ethics Quarterly 4, 321-333. Larkin, J. C. and H. A. Pines: 1979, 'No Fat Persons Need Apply: Experimental Studies of the Overweight Stereotype and Hiring Preference', Sociology of Work and Occupations 6, 312327. Larson, L. K. and A. Larson: 1998, Employment Discrimination (Matthew Bender, New York). Larwood, L. and U E. Gattiker: 1985, 'Rational Bias and Interorganizational Power in the Employment of Management Consultants', Group and Organization Studies 10, 317. Leigh, P.: 1991, 'Employee Job Attributes as Predictors of Absenteeism in a National Sample of Workers: The Importance of Health and Dangerous Working Conditions', Social Science and Medicine 33(2), 127-137. Lindeman, B. and P. Grossman.: 1997, Employment Discrimination Law, 3rd ed. (The Bureau of National Affairs, Inc., Washington, DC). Marks V. National Communications Association, Inc., 72 Fsupp. 322; 1999 U S . Dist. Lexis 16474. Maranto, C. L. and A. F Stenoien: 1997, 'Weight Discrimination: A Multidisciplinary Analysis', Industrial Relations Researchers Associations Annual Conference, Chicago. Mariott, B. M. and J. Grumstrup-Scott: 1992, Body Composition and Physical Performance: Applications for the Military Services (National academy Press, Washington DC).

Weight 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 Associated With Body Mass Index in a Workplace', Jowma/ of Occupational and Environmental Medicine 40(9), 786-92. Cogan, 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, 10 F.2d 17; 2 AD 1476 (1st Cir. 1993). Crawley, J.: 2001, 'Body Weight and Women's Labor Market Outcomes', Joint Center for Poverty Research Summaries 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 Disabilities Act Manual (BNA) No. 23, 100:7057 (Dec. 1993). Francis v. City of Meriden, 129 F.3d 281; 7 AD Cases 955 (CA 2 1997). Frank v. United Airlines, 256 F.3d 845 (9th Cir. 2000). Gaesser, G. A.: 1996, Big Fat Lies: The Truth About Your Weight and Your Health (Fawcett Colum^bine, New York). Gatewood, R. D. and A. B. Carroll: 1991, 'Assessment of the Ethical Performance of Organizational Members', Academy of Management Review 16(4), 667-691. Gerdom v. Continental Airlines, Inc., 692 F2d. 602; 30 FEP 235 (9th cir. 1982) (en bane), cert denied, 460 U.S. 1074 (1983). Greenwood, M. R. C. and V. A. Pittman-Waller: 1988, 'Weight Control: A Complex, Various, and Controversial Problem', in R. Frankle and M. Yang (eds.). Obesity and Weight Control (Aspen Publishers, Rockville, MD). Haskins, K. M. and H. E. Ransford: 2000, 'The Relationship Between Weight and Career Payoffs Among 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 Social Psychology 6, 503-516. Haung, W. and SE. Rubin: 1997, 'Equal Access to Employment Opportunities for People with Mental Retardation: An Obligation of Society,' Journal of Rehabilitation 63, 27-33. Heilman, M. E.: 1997, 'Sex Discrimination and the Affirmative Action Remedy: The Role of Sex Stereotypes', Journal of Business Ethics 16(9), 877-889.

Weight Discrimination in the American Workplace Marti, M. W., D. M. Bobier and R. S. Baron: 2000, 'Right Before Our Eyes: The Failure to Recognize Non-Prototypical Forms of Prejudice', Group Processes and Intergroup Relations 3(4), 403-418. McDermott, C. M.: 1995, 'Should Employers be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation and Hospitals', The 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 Research Laboratories, Whitehouse Station, NJ). Minnow, M.: 1990, Making All The Difference: Inclusion, Exclusion, and American Law (Cornell University Press, Ithaca, New York). Murrey, J. H.: 1980, 'The Role of Height and Weight in the Performance of Salesmen of Ordinary Life Insurance', fournal of the American Society of CLU 34, 56-64. Pagan, J. A. and A. Davila: 1997, 'Obesity, Occupational Attainment, and Earnings', Social Science Quarterly 78, 756-770. Parkes, K. R.: 1987, 'Relative Weight, Smoking, and Mental Health as Predictors of Sickness and Absence from Work', fournal of Applied Psychology 72, 275-286. Pingitore, R., B. L. Dugoni, R. S. Tindale and B. Spring: 1994, 'Bias Against Overweight Job Applicants in a Simulated Employment 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 to Communicate and Health Care Costs', Medicine

189

and Science in Sports and Exercise 33(11), 1535 1543. Register, C. A. and D. R. Williams: 1990, 'Wage EfFects of Obesity Among Young Workers', Social Science Quarterly 71, 130-141. Roehling, M. V: 1999, 'Weight-Based Discrimination in Employment: Psychological and Legal Aspects', Personnel Psychology 52(4), 969-1016. Roehhng, M. V., J.E. Campion and R.D. Arvey: 1999, 'Unfair Discrimination in the Employment Interview', in R. Eder and G. Ferris (eds.). The fob Interview: Theory, Research, and Practice (Sage Publications, Newbury, CA). Rowan, J. R.: 2000, 'The Moral Foundation of Employee Rights', Jowma/ of Business Ethics 24(4), 355-361. Smith, M. D., and W. McGhan.: 1996, 'Flirting with the Financiais of Fat', Business and Health 14(7), 53-54. Solovay, S.: 1999, Tipping the Scales offustice: Fighting Weight-Based Discrimination (Prometheus Books, Amherst, NY). State Division of Human 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, 'Gender Discrimination and the Workplace: An Examination of Rational Bias Theory', Sex Roles 38, 1. School of Labor and Industrial Relations, Michigan State University, East Lansing, Michigan, U.S.A. E-mail: roehling@msu.edu