Posted on September 17, 2008 4:35 PM by
Shanti Atkins
A dramatic rise in fuel prices over the past year has prompted the airlines to revisit the possibility of weight-based ticket pricing. And there’s been no lack of debate on both sides of this heated argument. Does the practice constitute discrimination?
Think about it. An airline is, after all, considered a public service provider that can’t, or at least shouldn’t, discriminate against passengers because of age, race, gender, or even pregnancy. How can it be okay, then, to discriminate because of weight?
At the same time, proponents of this new practice argue that it’s unfair to ask their customers to be inconvenienced by overweight passengers taking up more than their fair share of space. And, thinner, “healthier” passengers don’t feel they should have to pay higher ticket prices when they're not contributing to this hefty problem.
Does this debate sound familiar? It should, because it’s one your employees are probably having when it comes to other “weighty issues” like rising health insurance costs. Especially with the rise of corporate Wellness Programs.
Case in Point – Alabama
In August of this year, the Alabama State Employees’ Insurance Board approved a plan that would give the state’s 37,000+ employees one year to start getting healthier—or be charged $25 a month for their health insurance that's currently free.
Here's how it will work. Starting in 2010, free health screens will become mandatory. If the results indicate serious problems with blood pressure, cholesterol, glucose or obesity, employees have one year to see a doctor at no cost. They'll also have to enroll in a Wellness Program or take responsibility for some other kind of plan to improve their health. If a follow-up screening shows improvement (though improvement has yet to been defined), they won't be charged that extra $25 a month. But if the problems persist, workers have to start paying for health insurance in 2011.
Now there's a clear incentive to start taking care of your body.
Is it Legal?
So the legal questions here are obvious. Weight is not an official “protected category,” but can these kinds of programs pass muster under the Americans with Disabilities Act (ADA) and state disability laws? What about people who are overweight because of an underlying medical condition? And while obesity itself is not a disability, it can result in conditions (like sleep apnea or diabetes) which could meet some definitions of "disability" -- especially under state laws, many of which afford broader protections than the ADA.
There's really no easy answer -- it's a case by case analysis that's needed in most situations.
Don't you hate it when lawyers say that?
Dealing with Weight in Your Workplace
From a practical standpoint, here’s what you’re dealing with when it comes to employee demographics -- 1 out of every 3 Americans is now considered obese. So regardless of whether you're in the airline industry, or at company with a formal Wellness Program, as the obesity epidemic continues, so too will the debate about accountability when it comes to weight.
Caught in the crossfire are many of your employees who may feel discriminated against, but are too embarrassed to speak up or don’t know how to come forward with a complaint.
So how do you address this issue in a way that respects your employees, and protects your organization? It’s such a volatile issue. Frankly, a lot of employers don’t want to touch it.
Think about how bad, and how uncomfortable you feel when you hear a “fat joke” in the presence of an overweight friend, or even yourself. And how do you start to talk about weight – something with such undeniably negative connotations -- without alienating a huge percentage of your workforce? Wouldn’t training in this area be like a lightening rod of controversy, causing more problems than it solves?
All difficult challenges, unquestionably, but not an excuse to put our heads in the sand.
Practical Steps to Managing Weight Discrimination
The same way you wouldn’t ignore sexual orientation, skin color or religion in an educational program, with the trends we’re seeing in obesity, you just can’t ignore weight.
So first things first – take a look at your harassment training program, and make sure that it covers a number of key areas:
- How insensitive comments and jokes about weight are off limits, against policy, and won’t be tolerated.
- The importance of avoiding weight-based assumptions, or having obesity factor into important employment related decisions -- like a promotion or job assignment. (Only in very rare circumstances can weight be a valid consideration.)
- How weight-based harassment can amount to disability or gender based harassment, even though weight is not an official “protected category.”
- The growing trend of effective workplace Wellness Programs, and employers’ ability to support them without running afoul of discrimination laws
These are issues all featured in ELT’s latest Workplace Harassment course. When we first “dared” to cover them in back in 2004, few employers had the appetite (no pun intended) to roll them out to employees. I even had in-house attorneys and HR execs refer to weight discrimination as a “fringe” topic. But just four short years later, we’re seeing a much bigger uptake on this kind of content – which isn’t surprising when you look at the obesity statistics, and track developments like the Alabama State Employee’s Insurance Board Program.
Staying on the Cutting Edge
When it comes to the workplace, what makes us all uncomfortable tends to have a corresponding legal risk – and of course threatens the culture of inclusion we work so hard to foster and protect. What makes you cringe – what makes your blood pressure rise -- those are the topics on the cutting edge of EEO law that represent your future your risk profile, and your greatest HR challenges.
So beyond weight, think about gender identity, family responsibility discrimination and gay marriage. And how about genetic discrimination, complex military leaves and bullying? Are you and your training programs ready for the future of workplace harassment?