Mich. Law banning discrimination worries employer who want to cut unhealthy behavior
Written By: Paul Egan, The Detroit News
Monday, October 8, 2006
Steve Pasanski of Bad Axe says co-workers and supervisors used to tease him about his weight, and the company eventually fired him because he was obese.
Unlike workers in any other state, Pasanski - who weighted more then 360 pounds when he was let go - had the law on his side.
He sued Continental Rentals Inc. in federal court, using Michigan's Elliot-Larsen Civil Rights Act - the only state law that bans discrimination on the basis of weight. A jury in Bay City awarded Pasanski $284,000 in damages.
Although little-used since it was enacted in 1977, Michigan's unique protection is expected to grow ever more conflict with employer crackdowns on unhealthy behaviors.
Many employers view an obese employee as "a heart attack waiting to happen," said James Fett, a Pinckney lawyer who sued the Detroit Medical Center in U.S. District Court, alleging weight discrimination on behalf of a terminated financial administrator. The hospital's response is due this month.
A 2003 report by the U.S. Department of Health and Human Services estimated the cost of obesity to U.S. companies at $13 billion per year, based on $8 billion in health care costs, $2.4 billion in paid sick leave, $1.8 billion in life insurance and $1 billion in disability insurance.
"I expect Michigan, being the state with a law, will have an increasing number of cases," said Paula Brantner, acting executive director of Workplace Fairness, a California based nonprofit group that advises employees on their legal rights.
"You are gong to see situations where this runs square against a company's effort to try to stem rising health-care costs.
U.S. law doesn't guard obesity
If he lived in any other state, Pasanski would have had to rely on the U.S. Americans With Disabilities Act - essentially arguing his obesity amounted to a disability in the same way needing to use a wheelchair does.
Using the federal law has been generally ineffective. Courts are reluctant to recognize obesity as a disability, and many overweight people are reluctant to argue they are disabled. In fact, while agreeing Continental Rentals violated Pasanski's rights under Michigan law, the jury rejected Pasanski's claims under the ADA
State and federal courts do not track the number of weight discrimination lawsuits, lumping them instead with other job discrimination complaints made on more typical grounds such as race and gender. But awareness of weight discrimination is on the rise in Michigan. Weight discrimination complaints made to the Michigan Department of Civil Rights increased from 0.06 percent of all complaints in 1995, to 0.2 percent in 2000, to 1.2 percent in 2005.
Peggy Howell, a spokesman for the National Association to Advance Fat Acceptance, said Michigan residents are fortunate to have such legal protection. "The climate in the country I think is pretty anti-fat right now," Howell said.
"We would like to see it in every state," Howell said of the Michigan law.
Incentives help trim costs
Eric Finkelstein, director of public health economics program at RTI International, a nonprofit research institute in North Carolina, said health insurance costs are rising partly because of obesity, which studies show is also on the rise nationwide.
In response, employers are looking for strategies to increase competitiveness, Finkelstein said.
In Missouri, sandpaper company VSM Abrasives has a voluntary program under which employees weigh in each quarter and those whose weights have not increased receive $25. Employees who keep weight off for one year get an extra $25 and a day off with pay. The company claims the program has helped reduce annual health insurance claims by 10 to 15 percent.
"A growing number are putting in (health insurance) polices that say, if you weight less then you weighed last quarter, you're going to pay this much money for health insurance," Finkelstein said. "If you weight more, you're going to pay more."
Last year, an Okemos-based company gained national attention when it said it would fire workers who did not agree to quit smoking - a move some saw as a trend toward workplace attacks on lifestyles issues, including excess weight.
Miriam Berg, president of the Council on Size & Weight Discrimination in Mount Marion, N.Y., said the idea that obese employees are more costly is largely a stereotype. "The current thinking in the public health policy world is that weight, especially people who are much larger then average, that the weight is a serious health problem - much more serious then it really is," Berg said. "There are people who are fat and fit."
Mich. Law not catching on
Though the District of Columbia and the California cities of San Francisco and Santa Cruz also ban weight discrimination, no other state has followed Michigan's lead. There have been attempts to pass laws similar to Michigan's in Massachusetts, Texas and elsewhere, but "none of them have gotten very far," said Berg.
"We consider it kind of a hostile environment."
Glen Lenhoff of Flint, the lawyer who represented Pasanski in his lawsuit, said a co-worker played on negative stereotypes to get Pasanski fired.
"I was the number one salesman," but "me being overweight seemed to be a major problem for them," said Pasanski, who won his award late last year. The company sent him to a doctor for a physical exam that included heart and lung tests, but "of course I was in good health," he said.
Lenhoff said he believes one of Pasanski's co-workers wanted his job and falsely reported Pasanski's weight was causing him to sleep on the job.
Act not intended for obesity
Even in Michigan, the overweight were protected more or less by accident. Experts agree Michigan's ban on job discrimination on the basis of size or weight was aimed at protecting women and others of small physical size who wanted to work as firefighters or prison guards.
"It was not to protect the fat people; it was to protect the short people and the people who were lighter then average," Berg said.
Wendy Block, director of health policy and human resources for the Michigan Chamber of Commerce, said many employers believe it is important to have healthy employees "and wish that they could look at weight" when designing workplace wellness programs and making other decisions.
So far, nobody is pushing for change in the Michigan law, Block said. "If we get more into this personal responsibility model for health care, if that gets more momentum behind it, I would imagine we would have to have that conversation."
