Obesity and Employers: Workers throwing their weight around in the workplace.

It’s well known that obesity can have a negative impact on your health, but there is now a hidden consequence that may be surprising to employers. Workers’ weight issues can have a significant impact in the workplace, resulting in everything from absenteeism to productivity problems. Employers need to proceed with great caution because it is illegal to discriminate against an employee who is obese.

With obesity rates spiking throughout the country, including New Jersey, it is an issue that businesses will have to confront with increasing regularity. A report titled How Obesity Threatens America’s Future 2011 found that New Jersey’s adult obesity rate is a shocking 24.1 percent. But that is a protected category under the New Jersey Law Against Discrimination (LAD) and the Americans with Disabilities Act (ADA).

An article in Time Magazine reported that weight discrimination in the workplace continues to increase. A study in the Journal of Obesity found that “the U.S. has seen a 66% increase in weight bias over the past 10 years, a level of discrimination that’s comparable to racial bias in the workplace.”

Although the laws on obesity discrimination vary across the country, obesity has been protected in the New Jersey workplace since 2002. The New Jersey Supreme Court for the first time recognized morbid obesity as a handicap under the Law Against Discrimination (LAD) in Vicsik v. Fowler Equipment Company. Under the LAD, a person must show that he or she is (1) suffering from physical disability, infirmity, malformation or disfigurement (2) which is caused by bodily injury, birth defect or illness. The Vicsik Court noted, “The term ‘handicapped’ in LAD is not restricted to ‘severe or ‘immutable’ disabilities and has been interpreted as significantly broader than the analogous provision of the Americans with Disabilities Act (ADA).”

The Vicsek case was the first ruling by the New Jersey Supreme Court to hold that obesity was a disability. The only other published opinion on obesity in New Jersey was the case of Gimello v. Agency Rent-A-Car-Systems, Inc., where the Appellate Court upheld a ruling that the obese plaintiff’s weight was a handicap. New Jersey has historically been “progressive” in expanding employee rights in discrimination cases – it was the second state to rule that obesity can be a handicap under certain conditions.

What exactly is weight discrimination? The article “Weight Discrimination: A Socially Acceptable Injustice,” explores the distinction between discrimination and stigma. Discrimination “is distinct from stigma and negative attitudes, and specifically refers to unequal, unfair treatment of people because of their weight.” Examples of discrimination include being denied a job promotion because of one’s weight or not receiving a job offer because of one’s weight. In cases of discrimination there is a common feature: “behaviors directed toward the obese individual depict inequitable treatment with no justifiable cause.”

It is both interesting and important to note that in general, a person’s chances of being discriminated against increase as their weight increases. Obese women encounter more discrimination than men. A study found that 45% of very obese women reported discrimination, while only 28% of very obese men reported discrimination.

As obesity rates continue to increase in the state and across the nation, it is essential that companies prepare and protect themselves from potential discrimination claims. Businesses need to inform themselves and their employees of the law, establish polices and enforce them. Knowledge about weight discrimination can help prevent those claims, which will surely grow as the workforce’s waistline continues to expand.