Quirky Question #209:
We are in Montana and a very obese woman recently applied for a manager position. The position is more physical than most in that there is significant walking between facilities, and the candidate must climb ladders to view the product line in the manufacturing facility. We declined to hire this candidate because we did not think she could safely perform the job. She has threatened to sue us. Is there any risk?
You don’t say so in your question, but we are assuming that this candidate was the most qualified for the position, but for her obesity. If not, she should have been rejected without any consideration of her obesity. Assuming she was the most qualified, there is risk making a decision based on physical characteristics. While your assessment facially appears logical, a recent Montana case highlights the pitfalls of this approach.
Eric Feit applied for a conductor position with the Burlington Northern Santa Fe Railway company. He received an offer of employment conditioned on his successful passing of a physical and a drug screen. Based on the physical, BNSF declined to hire him because of “significant health and safety issues associated with extreme obesity” and told him he could only be hired if he lost 10% of his weight or passed an additional physical.
Feit filed a complaint with the Montana Department of Labor. After an administrative hearing, the Department held that he had been a victim of disability discrimination because BNSF perceived that his weight would substantially limit his ability to perform the duties of the position. The Department awarded him $500,000 in lost wages and damages. The Montana Human Rights Commission agreed and the question was ultimately received by the Montana Supreme Court.
The Montana Supreme Court often looks to federal discrimination laws, in this case the ADA and ADAA, when interpreting the Montana Human Rights Act (MHRA) (which predates the ADA). Note that the ADA, ADAA and the MHRA do not define the term “physical impairment,” which was at issue. Thus, the Court relied on the EEOC regulations, which define “impairment” as “any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body parts”, and further state that “physical characteristics such as eye color, hair color, left handedness, or height, weight or muscle tone that are within “normal” range are not impairments”. Because, Feit’s weight was not within normal limits, the court held that obesity could constitute a physical or mental impairment under the MHRA. This was true even though Feit’s obesity was not caused by a physiological disorder.
This is a controversial decision and indeed only 4 of the 7 Montana Supreme Court Justices agreed with the opinion. The decision, however, highlights the danger of considering physical characteristics as a reason for denying an applicant a position. If you had required a physical and that physical revealed that the applicant could not climb ladders or walk significant distances, you would have been in a better position to decline to hire her. Even in that case though, you would want to explore whether there were reasonable accommodations that would have allowed her to perform the job, and whether the accommodations would cause undue hardship.