As a society today, weight is starting to effect the workforce more and more. Specifically, what happens when an employee gets so large (obese but “large” sounds better) that they can no longer effectively do their job. Are they really not able to do their job or is management just concerned about their medical issues or risks of injury? The Houston Chronicle reported that the EEOC sued BAE Systems, Inc. alleging disability discrimination because employee, Ronald Kratz, was fired because of his weight.
Mr. Kratz weighed 600 lbs when he was fired. The article notes that the employee weighed 300 lbs when he was hired. This fact suggests that weight was not a discriminatory issue if they hired him at 300 lbs. What gives the case some appeal is the way he was fired. According to the article, Mr. Kratz recently received a favorable evaluation. (This reinforces my dislike of evaluations but more on that in another blog). Mr. Kratz was called to the office and fired. The reason, he is told, is that he took too much time to walk across the parking lot. OOPS!! Walking across the parking lot to get to work doesn’t sound like an essential function of the job. The article goes on to say that the employee has been unable to find work, creating a hardship on his family.
In order to bring a discrimination lawsuit, you must be in a “protected class”. A protected class is either gender, sex, disability, pregnancy, age, or veteran status. Until recently weight was not considered a protected class. However, the amendments to the Americans with Disability Act, make it clear that obesity can be considered a disability. So firing someone because they are “large” can be a big legal no no.
What do you do, as an employer, when you have a “large” employee? Weight issues at work are tricky and it really does pay to consider them carefully. If the job is one of safety, weight can become an essential job requirement. For instance, if the employee works in a job that requires a safety harness, the weight requirements of the safety harness must be met. So if the weight limit of the safety harness is 300 lbs and the employee weighs 400, he can’t safely wear the safety harness.
The Challenge Of Accommodation
In our example, the Company should try to accommodate the employee by looking for a larger harness. But what happens if no such safety harness exists?. The job requires that the employee wear the safety harness in order to safely perform the essential functions of his job. The employee can’t perform the essential functions of his job because of his weight.
The accommodation issue is a tricky one, really a legal mine field. In our example, I can imagine the EEOC saying, “There must be other jobs that the “large” employee can do; another job that does not require wearing a safety harness. Transfer the employee to that job.” But maybe there isn’t a job that the “large” employee can be transferred to, so now what?
Consider this scenario, the job is in a plant where the employee works as an operator but part of the job is to unload trucks when they come into the plant. Being an operator does not require wearing a safety harness, only unloading the truck requires that the harness be worn. The Company could accommodate the “large” employee by deleting the requirement of unloading the trucks from his job duties. But in this scenario, all the employees dislike the requirement of unloading the trucks. None of the operators want to do that part of the job. What happens if the “large” employee no longer has to perform that hated chore. Do the other employees been begin to resent him because of it? Do the other employees complain among themselves that it “isn’t fair”. Do some complain that they aren’t given any consideration when they have back problems, etc.
What happens if the “large” employee is very popular and is liked by all. Consider what happens if the other employees pitch in to cover for the “large” employee. No one minds picking up the slack for him (the dreaded truck unloading job) because why? They LIKE him.
Now consider what happens when another “large” employee can no longer wear the safety harness safely. This “large” employee is not liked. No one wants to cover for him. There is much resentment when he no longer has to perform the dreaded unloading job. Everyone else, starts to slow down when the trucks roll in. The resentment builds and ultimately production slows to a snail pace. Every step of unloading those trucks makes the operators angrier and angrier. You get the picture.
“Keep It Equal”
One of human resources’ favorite refrains is to “keep it equal”. This is because you are not discriminating against anyone when your policies are applied equally to everyone. The only problem is this is the real world and it is often times very hard to “keep it equal”. Parents of several children will tell you the same. It is very hard to treat the kids the same because they aren’t the same. But in business, it is very important that you do keep it equal. Once you make an exception for the liked or popular employee, you will have to do it for every other employee, including the bad employee. It opens up a Pandora’s box of employment problems.
Back to our question of what to do with the “large” employee at work. In the EEOC case above, the BAE Systems, Inc. would have been much better off if they had talked to the employee privately about his weight issues and offered to provide company sponsored Weight Watchers programs or The Biggest Loser contests. These conversations should be conducted privately with the employee and done in a sensitive way. You don’t say, “We are concerned that at your present weight you are a walking heart attack and we can’t afford our insurance premiums to go up.”
If the employee works at his desk, and gets to work on time, the amount of time he takes to walk across the parking lot is not an essential function of his job. In the EEOC case, the “large” employee stated that he offered to work less hours and take a pay cut but the BAE Systems, Inc. just fired him instead. It may be that the employee’s work performance had deteriorated. If so, counsel him on that and if he doesn’t improve, terminate based on that reason, not the speed in which he walks across the parking lot.
