Every one of your employees is going to look different and act differently, and it’s good to remember that as an employer, you shouldn’t make assumptions about an employee’s ability without actually seeing what he or she can do.
There is a case pending in Chicago right now in which a bus driver sued the Chicago Transit Authority (“CTA”) for terminating his employment. The driver weighs over 500 pounds. He claims the CTA concluded he was unable to perform his job duties because he was too heavy and that it unfairly scrutinized any driver who weighed over 400 pounds.
The bus driver lost his case. The theory of his lawsuit was that the CTA discriminated against him because his obesity was a disability and the court ruled that obesity, without some underlying medical condition, does not qualify as a disability. However, that doesn’t necessarily make the CTA the big winner here – the case is currently on appeal and the CTA could still lose. Plus, several advocacy groups have publicly supported the bus driver and have made the story national news, and being the defendant in a highly-publicized story never paints a business in a positive light. And, most crucially, the cost of defending a lawsuit and an appeal is astronomical and would seriously hurt a small business without the CTA’s resources.
Since your business likely does not have a budget like the CTA’s, you have to try to keep it out of this kind of situation. A great first step to doing so is to judge each employee on his or her individual merit instead of making assumptions based on how an employee looks. The CTA had some valid arguments that the driver was unable to perform certain functions because of his size, but it also appears that it may have made some assumptions about his ability just because he was overweight. While one large person may have certain physical limitations, another may not, and it is unfair to assume all people will have the same abilities or limitations based solely on size. This applies equally to gender, race, age, disability and any number of other factors.
Make your employment decisions based on your assessment of each individual’s actual abilities instead of making assumptions. If you need to test out an employee’s abilities, make sure that test is based only on necessary, job-related factors. If you do so, employees are more likely to feel they are being treated fairly and not being judged on how they look.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.