Texas hospital reportedly bars obese workers -- and it might be legal

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Published April 05, 2012

| FoxNews.com

Not everything should be bigger in Texas.

A Texas hospital has reportedly instituted a hiring policy barring potential employees who are obese -- and officials at the Equal Employment Opportunity Commission tell FoxNews.com that the practice is not explicitly discriminatory.

The policy, which was instituted last year at the Citizens Medical Center in Victoria, requires potential employees to have a body mass index of less than 35. That equates to roughly 210 pounds for someone who is 5 feet, 5 inches tall or 245 pounds for someone who is 5 feet, 10 inches, the Texas Tribune reports.

An employee’s physique “should fit with a representational image or specific mental projection of the job of a health care professional,” including an appearance “free from distraction” for hospital patients, according to the policy.

David Brown, the hospital's chief executive, did not return several messages seeking comment on the policy, but he told the Texas Tribune that the hospital's patients have "expectations" regarding personal appearance that cannot be ignored.

“We have the ability as an employer to characterize our process and to have a policy that says what’s best for our business and for our patients," Brown said.

Justine Lisser, a senior attorney and adviser at the Equal Employment Opportunity Commission, said the Americans with Disabilities Act would prohibit discrimination against the morbidly obese since that can be a covered impairment.

"There are, however, people who may have a BMI that is higher than what the hospital required, but not so high as to constitute morbid obesity," Lisser wrote in an email to FoxNews.com. "Unfortunately, these people would not be covered by our laws prohibiting discrimination because they would not have a covered disability."

One of the hospital's justifications for its policy, Lisser wrote, is that its patients expect some sort of professional appearance that, presumably, does not include being overweight.

"Under any other one of our laws, customer preference is absolutely no justification for discrimination except in very limited and narrow circumstances," her email continued. "So, for example, as happened in one of our recent cases, a home health aide service may not refuse to send out African-American nurses aides in response to customer requests; however, if the aide were to be involved in intimate care of women, it would be permissible to restrict the position to women."

If the hospital's BMI preference only applied to one group and not another -- say to African-Americans and not Caucasians -- that would constitute illegal race discrimination. Likewise, if it were applied solely to women and not men, that would constitute illegal sex discrimination, Lisser said.

"While our laws may not cover people who are overweight but not morbidly obese, the entire thrust of EEOC's mission is to have people considered for employment based on their qualifications and experience -- not on irrelevant factors," Lisser's email concluded.

Michigan is the only state that bans weight discrimination, although six cities -- Birmingham, N.Y.; Santa Cruz, Calif.; Madison, Wis.; San Francisco; Washington, D.C.; and Urbana, Ill. -- have also enacted weight discrimination laws. Madison first enacted its laws banning discrimination based on weight or personal appearance on March 13, 1975.

Lance Lunford, a spokesman for the Texas Hospital Association, said hospitals have the right to utilize policies to ensure the best business.

"Hospitals have a right, as any business does, to employ measures that ensure the most effective and efficient outcomes for the business," Lunford wrote in an email to FoxNews.com.

Attorneys contacted by FoxNews.com were largely split on the issue.

Bobby Lee, a Dallas-based employment attorney, said a "good argument" can be made that the policy is discriminatory.

"I can't imagine [the policy] becoming widespread because they'd be setting themselves up for lawsuits," he said. "You can imagine: If you're an overweight person who can do the job, you can say this is wrong."

Stephen Key, an attorney with Dallas' Key Harrington Barnes, said Texas law contains no specific prohibition on weight discrimination. Employers cannot discriminate solely because of race, age or religion, he said.

"If an overweight person applied for a job and they were denied and they sued, they would very likely lose," Key told FoxNews.com. "In fact, the case might be dismissed summarily because it doesn't state a cause of action under Texas law."

Key continued: "However, if a morbidly obese was denied employment, I would expect they would have a successful case … So we have this weird situation where you can discriminated against if you're fat, but not if you're morbidly obese."

URL

http://www.foxnews.com/us/2012/04/05/eeoc-texas-hospital-that-bars-obese-workers-not-necessarily-discriminatory/