Obese Employee Awarded Settlement in ADA Case

Lisa Harrison was fired for being severely obese, despite being able to perform the essential functions of her job. Her employer – Family House of Louisiana, a facility that treats chemically dependent women – will pay $125,000 to settle a disability discrimination suit that was filed by the U.S. Equal Employment Opportunity Commission (EEOC).

This case lays out arguments that are likely to have far reaching implications for employees of size.
Ms. Harrison’s employer tried to argue her obesity was her own fault and due to a lack of willpower and that she should not be protected by the ADA.

The court approved the settlement saying “severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder…neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment.” EEOC General Counsel David Lopez said “All people with a disability who are qualified for their position are protected from unlawful discrimination. Severe obesity is no exception. It is important for employers to realize that stereotypes, myths, and biases about that condition should not be the basis of employment decisions.”

Jim Sacher of the EEOC said “Employers cannot rely on unfounded prejudices and assumptions about the capabilities of severely obese individuals. Despite performing her job for years, Ms. Harrison was terminated without warning and without any evidence that she could not perform the essential functions of her position. This case highlights the fact that severely obese people who can do their jobs are every bit as protected by the ADA as people with any other qualifying disability. Any notion that these individuals are not protected, based on the wrongheaded idea that their condition is self-inflicted, is simply wrong and without legal basis.”
The full press release is here.

Studies show us that prejudice runs high when it comes to candidates and employees of size in everything from hiring to pay rate to terminations, and that’s something for employers to overcome. The best protection is always to hire the best person for the job regardless of what they look like and make accommodations where possible for your employees.

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Does Obesity Really Cost the Workplace 73 Billion Dollars?

We’ve all seen the headline “Obesity’s Hidden Job Costs –  73 Billion.” Is there really cause for alarm?

I went to the Journal of Occupational and Environmental Medicine and paid $20 for the article, which was titled “The Costs of Obesity in the Workplace.”.

The study looked at three factors:  Medical Cost, Absenteeism (not showing up to work) and Presenteeism (being at work but being unproductive).

Most news articles credited Duke University with the research.  That’s true – the lead author is Eric Finkelstein, an associate professor at Duke-National University of Singapore.

The study used two sources:

The 2006 Medical Expenditure Panel Survey where BMI data is self-reported, and the 2008 National Health and Wellness Survey which is a series of self-administered internet-based questions fielded by 63,000 members of an internet based consumer panel.  Every piece of information is self-reported and unverified. The $73 billion is an estimated projection based upon statistics that were created by doing computations with statistics and estimates, and statistics of other statistics. There are issues in the collection of data, the control of variables, the use of data (the study authors feel that the words “obesity” and “health problems” are scientifically interchangeable, that fat people’s health problems may be assumed to be caused by fatness, and utilizes BMI which has any number of problems as a statistic in and of itself, and the conclusions that they drew.

The fact that news agencies reported this information as true without bringing up the limitations and issues caused a lot of undue panic among HR professionals.  It also caused a lot of panic among employees of size.  Studies already show that obese people make less than their peers and are turned down for jobs based on prejudices about weight.

I’ll get to the math in a minute, but before I do there is another thing that makes this research deeply concerning.

Under “acknowledgments” it says “This study was supported by Allergan, Inc.”  “Supported” here has the meaning of “funded by”.

Allergan is a pharmaceutical company.  They produce Botox, and the LapBand – the item used to constrict the stomach in a controversial weight loss surgery option.  Allergan is known for being extremely aggressive in the marketing of their product and they are using this study to convince health insurance companies to encourage and pay for lap band surgery because, based on this questionable research, it’s “cheaper than the loss productivity”.

It is never wise to make assumptions about an employee’s based on how they look  – and that includes how much they will cost your insurance.

Here come the details:

Medical Expenses: The calculation of this is statistically complicated because of the data.  They used a two part estimate that created four categories of overweightness based on the self reported weight.  “Normal weight” were the omitted reference group.  They controlled for race, household income, education, insurance coverage, marital status and smoking. They subtracted the average predicted medical expenditures for obese individuals in each category from the average predicted expenditures for those of normal weight.  Then they multiplied that estimated number times the number of people in each category and added them up and extrapolated based on the estimate of obese Americans.

Problems: First of all, notice the number of times that the words estimate, average, and predicted appear in that explanation.  If I had more free time I would be doing a word count to give you an exact percentage of the number of words that are used in this study that essentially mean “um, maybe…”, there are many.

They also didn’t control for any genetic health issues, or health issues that aren’t even correlated to weight.  They assumed that any medical problems that obese people had over and above what normal weight people had were due to fatness.  They assumed that normal weight people’s health issues weren’t related to the same things that caused health problems in overweight and obese people.  That’s just embarrassingly bad science.

Absenteeism and Presenteeism: These were measured based on a question that asked people “During the last seven days, how many hours did you miss from work because of your health problems?” and “During the past seven days, how much did your health problems affect your productivity while you were working?”  Participants indicated their level of work impairment via a rating scale ranging from 0 to 10.  Each response was assumed to represent a percentage reduction in productive work.  Then they annualized and monetized the predictions using age and gender specific wage data from the bureau of labor and statistics.

Problems: Respondents weren’t talking about how much work they missed or productivity they lost due to their weight, they were answering about their health problems.  What they can reasonably be concluded here is that people with health problems have more absenteeism and presenteeism than do people without health problems.  The study’s authors are substituting “obesity” for “health problems” .  You can do that I guess, but you probably shouldn’t do it while calling yourself a scientist.

Then, they computed statistics using statistics, and statistics of statistics. They used a 7 day sample to calculate a year’s worth of data.   Once again, they assumed that any absenteeism or presenteeism over and above what normal weight people had was due to fatness.  Except that overweight men reported less presenteeism than normal weight men.  That was not reported in any news outlet that I could find  EXCEPT the study itself and they  gloss over it.

This research is shoddy at best and is not a good basis for any kind of HR decision making.

 

Carrot and Stick Benefits – Too Much Stick, Not Enough Carrot

It has become increasingly popular to use a “carrot and a stick approach” for benefits cost savings. The goal is encouraging employees to become healthier by making benefits more expensive for those who are perceived as unhealthy using measurements like Body Mass Index, cholesterol, and blood pressure. These programs charge more to people who don’t measure up, either by giving discounts to employees who who are perceived as healthy (carrot), or penalizing those perceived as less healthy (stick).

As a former CEO and Operations Consultant, I get that this looks attractive from a cost savings perspective, but I also know better than to buy into the latest thing without doing my research. It turns out, in the long term, these programs are most likely to leave employees less healthy, less productive and cost much more. The best chance for happy, healthy employees and long term cost savings is to encourage healthy habits.

Full disclosure – were I employed by a company using this approach I would be paying higher premiums. Not because I’m not healthy – all of my metabolic health markers are in the exceptional range. And not because I’m not active – I’m a three time National Champion Dancer who can do the splits and leg press almost four times my body weight. But my BMI puts me in the obese category. The problem is that BMI was created to compare relative body size among large populations and we incorrectly use it as measure of individual health. I’m not the only healthy person who would be caught by the use of this poor measuring tool – Arnold Schwarzenneger, Matt LeBlanc and many professional athletes would be paying up with me.

Studies since 1959 have shown that intentional weight loss, whether it’s called a diet, eating plan, or lifestyle change fails 95 percent of the time in the long term. So if employees are encouraged to lose weight, 95 percent of those who try will be heavier with worse metabolic health than they started within a couple of years. Plus, it encourages employees to participate in unhealthy behaviors to “make weight” for the annual evaluation which can lead to health dangers including weight cycling (yo-yo dieting) and even eating disorders. In what other area of business would we look at these numbers and decide to move forward?

Organizations including the American Heart Association, American Cancer Society, Obesity Action Coalition and National Women’s Law Association have come out against these programs because of legal issues. Employees are starting to challenge these programs using the Americans with Disabilities Act because blood pressure, cholesterol and body size can be caused by genetics or diseases over which employees have no control. They are also suing employers who partner with programs like Weight Watchers that have been successfully sued by the Federal Trade Commission for deceptive trade practices. It’s going to get messy and expensive and nobody wants a piece of that action, especially considering there are much better, more cost effective ways to increase health and save money.

Evidence strongly suggests that focusing on fitness rather than weight is the best chance for long-term health. Researchers have found that fitness trumps fatness and just about everything else. Encouraging healthy behaviors without focusing on weight is the only thing that’s been shown to produce short and long term success in creating healthier employees. What can be done for workplace health?

  • Hold a beginning of the year meeting and announce the company’s commitment to employee health at every size and announce the options being implemented.
  • Research shows 30 minutes of walking, five days a week, creates massive health benefits. Start walking groups after lunch to help employees get their 30 minutes and beat the 2 p.m. slump.
  • Setting goals around fitness rather than weight loss means employees succeed early and often and are more likely to stick to their fitness program. Create office contests based on fitness goals rather than weight loss.
  • Bring people into a conference room to teach dance, pilates, yoga, or martial arts for the hour before and/or after work – employees get healthier and miss the rush hour.
  • Provide “lunch and learns” focusing on the benefits of healthy behaviors instead of on losing weight.

People only take care of their bodies if they believe those bodies are worthy of care; by providing opportunities for healthy behavior, a truly healthy workplace is on its way.

Intro to BiggerBetterBusinessBlog

They tell us that Americans are getting bigger, and that affects businesses employees and customers.

Overweight and obese workers have become a hot topic in the business world. Companies are dealing with questions about how to create the healthiest, most productive workforce; should they go with carrot and stick benefits programs, what to make of court cases that are extending Americans with Disabilities Act (ADA) and more.

When it comes to their customers, some businesses don’t even know that they are leaving money on the table by effectively targeting a customer base that is not 67% of the population.

As a former CEO and Operations Consultant, I have dealt with all of these issues and more. As a fat woman, I’ve been on both sides of the fence.

Now I write and speak professionally at Universities (including USC, Michigan State, University of Florida, and CalTech), Professional Organizations (International Association of Administrative Professionals, Rotary International, American Society of Women Accountants) and corporations (Apple Austin Campus and Google Headquarters). I help people understand the research, rulings, and best practices around health and weight, I help businesses create their healthiest, most productive workforces, and I help companies make sure that they are effectively targeting customers of size so that they are not leaving money on the table.