That's about the size of it

A year ago, when Acme's keel finally touched bottom and the company began to founder, the economic tide ebbed just a bit too much. With each shift operating at 55 percent capacity, management decided to run the first shift at full steam and eliminate the second shift. This unprecedented move, quite naturally, resulted in a certain amount of job redundancy the company would not tolerate. The problem was eliminated by more selective layoffs, this time among the management. Unfortunately, among the 26 workers put ashore at the local unemployment office was the second shift maintenance manager, Duncan Doanuss. One of only a handful of 20-year veterans on the Acme crew, Duncan was an affable, 37-year old, a five foot-eight inch, 265-pound all-around nice guy. He had worked his way up from sweeping Acme's floors after school and had proven his capabilities and value many times over during his career on the plant floor.

As they say, a rising tide lifts all boats. After a few months, the officers at Acme's helm realized the corporate vessel was still seaworthy as it began to float a bit higher in the uncertain economic swells now washing over the nation. The freeze on overtime was lifted as orders began to pile up on the pier. At the back of the plant, the docks were lading cargo like the good old days. The apparent return to prosperity was partly illusionary, though, because Acme was cutting its prices in an effort to keep things on an even keel. As a result, profitability lagged the increase in activity.

Noticing the trend, Acme's captains of industry realized that it might be time to relaunch the second shift, which gave them a perfect opportunity to reduce costs by restructuring the middle management jobs. Supervisors and managers would now be spending a lot more time on the floor, even working side by side with the people who report to them.

To get things started, Acme's HR manager, Millie Graham, contacted the former second-shift middle managers. Of the 26, there was no way that nine could be persuaded to sign on for another voyage because they had already found jobs that wee better than anything Acme could possibly offer.

"How are things going on rehiring our second shift team?" asked Syl Howett, Acme's operations director, when she stopped by Millie's office one day.

"Within the next week, 15 of the last 17 will be back," replied Millie.

"Who are the other two?" asked Syl.

"Duncan and Charlie," said Millie. "I don't think Charlie will come back anyway. He's got less than a year before he can retire, and I think he'll do it the moment he gets the chance. And I haven't been able to contact Duncan. His phone is always busy."

"Well, don't bother trying to call him anymore," ordered Syl. "You know about our precarious financial situation. And Duncan is way too overweight. If something happens to him, our health insurance will hit the rocks and become more costly than it is right now."

"You've got a point, Syl. We are self-insured," answered Millie.

"Exactly," replied Syl. "Duncan's not even six feet tall and he weighs well over 250 pounds. Do the math. His body mass index is at least 40, if not more. Such morbidly obese people have an outrageously high risk of coming down with high blood pressure and worse. I'll bet he has at least a 10-fold risk of dying on the job. And we don't want to share that risk or have it happen on our watch."

"Poor Duncan. You make it sound like the guy's a walking time bomb," said Millie.

"He is, Millie," snapped Syl. "And when he explodes, we're all going to get hurt. Besides, he doesn't match the lean, trim image we want to project in the marketplace. So, I repeat, don't contact him. We don't want him here."

Meanwhile, across town in an apartment too small for its purpose, Duncan sat at his computer day after day cranking out resumes. He swapped e-mails with former colleagues, and soon realized that several coworkers have returned to Acme. "That's a good sign, and they'll be calling any minute now," he thought, as he logged off to take a nap.

When weeks passed and Duncan heard nothing, he left voice mails for Millie every day, but she didn't return his calls. When Duncan called early one morning, he caught Millie off-guard, and she told him that he wasn't scheduled to be called back at all. Duncan asked why, but Millie dodged the question and never gave him a direct answer. All she said was that he "didn't fit the new image."

Three weeks later, Duncan filed suit for size discrimination under the state's Fair Employment Practices Act and the ADA, arguing that he's perfectly capable of doing his job and isn't being rehired because he is viewed as being handicapped.

What could have been done to avoid this situation? How would you handle this matter? Does Duncan have a case?

A corporate consultant says:

Okay, now let me get this straight: Mille is the HR Manager and she tells Duncan that he doesn't "fit the new image"? Caught off guard or not, an HR manager worthy of the title knows better!

Syl should have had the discernment to keep her thoughts to herself. Had she not been so loquacious, this case would never have occurred.

Given that the situation has occurred, I'd handle it by contacting Acme's legal counsel to learn more about the degree of exposure. If Acme is at considerable risk, freeze hires until a settlement can be reached, deploying existing staff to meet demand. I'd also address the lack of discretion and professionalism shown by Millie and Syl in a private meeting with each of them. Depending upon the degree of exposure and the anticipated outcome, I might terminate either or both of them.

Whether or not Duncan has a case is a question for Acme's attorney. However, even if Duncan doesn't have a case, I would not treat his threat as if it were frivolous.

Francie Dalton

Dalton Alliances, Inc.

410-715-0484

[email protected]

An attorney says:

Whether Acme is in trouble here depends on some facts we don't know. Suits by obese employees under the Americans with Disabilities Act generally have been unsuccessful. At the outset, the EEOC takes the position that characteristics, such as height and weight, are not impairments under the ADAare not disabilities. In some cases, employees have argued that obesity prevented them from performing a major life activity, such as walking long distances. Courts have been reluctant to consider a restriction on the distance one could walk as a limitation on the major life activity of walking.

Other employees have argued that their employer "perceived" them to be restricted in a major life activity because of severe obesity. For example, if Acme perceived that Duncan could not adequately supervise employees because he could not squeeze into tight spaces to check on work they had performed, he might have an argument that he was discriminated against because Acme perceived him to be disabled in the major life activity of working. However, the facts here suggest Duncan was able to sweep the floor and was otherwise successful in his work tasks. Syl's reasons for not returning Duncan to the fold focus on his lack of corporate image and the health risks he might face in the future.

To date, no state or federal law prohibits an employer from refusing to employ an individual who does not fit the corporate mold, that is, as long as the corporate image itself doesn't eliminate women, racial or ethnic minorities or any other protected class. In addition, an employer who demanded that employees be at least six feet tall might face claims that this hiring criteria created a disparate impact on women, Hispanics and Asians, who are seldom that tall.

Some state laws, however, offer more protection than the ADA. In some states, employees who are obese due to a medical condition, rather than the voluntary act of overeating, are protected. Whether Duncan's obesity is due to a medical condition or his proclivity to sit at his computer, rather than hit the health club, is unknown.

Apart from the legal issues, however, the question remains whether Acme is being foolhardy in rejecting an excellent manager because of its narrow view of what physical shape meets Acme's corporate image. No pun intended.

Julie Badel, Partner

Epstein Becker & Green, P.C.

312-499-1418

[email protected]

An academician says:

I really don't think that Acme has much of a case. The argument that Duncan's weight puts him in a high-risk category, which, in turn, makes him ineligible for employment at Acme just won't float. First, who decides who is in what medical risk category, and makes decisions based on that judgment? Are we depending on the medical wisdom of the director of operations? Help!

Secondly, Duncan may not be in any risk category higher than a chronic smoker, a junk food addict, a drinker or someone with a family history of the diseases to which Duncan is accused of being susceptible. Is Acme getting rid of every employee who falls into one of those categories?

Finally, it seems clear that Acme intended to hire back the managers and Duncan was one of those. However, as he was the only one who didn't get the call, it doesn't take a rocket scientist to figure out that he was being singled out.

I think Acme should suck it up and rehire Duncan. He performed well before the layoff and there's no reason to believe that he won't perform well now. In the future, make sure there are clear and written policies regarding the medical requirements for employment and apply them indiscriminately to every employee. And even here, I think Acme can't select or reject employees based on what might happen in 20 years, but must stick to that which affects current on-the-job performance.

Homer H. Johnson, Ph.D.

Loyola University Chicago

312-915-6682

[email protected]

Our "in the Trenches" stories are created as a learning tool; the names of the companies and the people described within them are fictional.