SCENARIO:

Discrimination is a sensitive subject. While the facts of a discrimination law suit can often be difficult to read, it is important to understand how these issues play out in the workplace. Both employees and employers need to understand their rights and obligations under the law.

Frank is employed as a shuttle driver by a small boutique hotel in Dallas, Texas. The hotel offers complimentary shuttle service to and from the Dallas airport to its guests. The hotel has 20 employees, including Frank. He was hired in 2012 and has been a model employee since that timealways arrives to work earlier, rarely takes sick days, and is pleasant to all the customers. However, over the past five years, Frank has put on a significant amount of weight, and his manager, Jesse, has become increasingly concerned about Frank's ability to help customers in the event of an emergency. Because the shuttle is small, Frank is not required to maintain a commercial driver's license and, therefore, is not subject to regular medical testing by the Department of Transportation.

Jesse called Frank into his office one day before Frank's shift was about to start and said, "I know you've always done a good job here, but I'm really concerned that your weight could affect the safety of the passengers in the event of an emergency. What if a customer had a medical emergency? What if you needed to help a customer in a wheelchair exit the vehicle in the event of an accident? Would you be able to get to them quickly and help them?" Frank became visibly distraught and after a few moments responded, "I know I have put on some weight since I started here, but last I looked it wasn't a crime. And besides that, I'm seeing a therapist for a food addiction so you can't fire me. I'm protected under the ADA." Then Frank walked out of the office and completed his shift without incident.

Several days later, the management of the hotel developed a new provision in its employee manual which stated, in part, "Due to health concerns for employees, rising health insurance premiums, and the safety of our guests, it shall be the policy of this company and hotel that no employee (1) shall have a body mass index which qualifies them as obese, (2) has high cholesterol, and (3) consumes "fast food" while off duty. Any employee in violation of this policy shall be subject to discipline, up to and including termination." The hotel published the new policy on the "News for Employees" board in the back office. When Frank got into the office, he saw the posting and became extremely distressed. He decided he needed to take the rest of the day off to collect himself and made an appointment to speak with his supervisor the following day.

When Frank arrived for his appointment with Jesse, Jesse stated, "I'm sure you have had time to review the new policy. The company will be asking all its employees to go in for medical testing next month and they are going to have to submit the results to our health insurance carrier to see if we can get a better rate. I don't know how we will be able to continue operating the business if we don't get some kind of break in our costs. I hope you understand that the company is serious with this policy. It is for financial reasons and has nothing to do with you personally."

Frank responded, "I feel like I am being targeted. I have never had an issue at the company and because I have put on some weight you are going to fire me. There is no way that I would be able to lose enough weight by next month. On top of that, do you really think you can fire someone for eating fast food outside of work? That's insane. The company can't try to control people's lives like this!" As he spoke, Frank became more and more agitated, eventually reaching a state of anger, and said, "You just try to fire me! I'll sue you so fast it will make your head spin."

Jesse answered, "This is an employment-at-will state. The company can get rid of you at any time. You better watch who you threaten!" Frank stormed out of the office and Jesse phoned the company's HR consultant to determine whether he could go ahead and terminate Frank for having unruly behavior in his office.

DISCUSSION QUESTIONS:

1. What are the laws/regulations that will help Jesse and the hotel's management determine whether or not they can terminate Frank?

2. Should appearance or weight be considered protected classes for employees?

3. What about food choices outside of work? What about high cholesterol?

4. Does the hotel have a valid business reason for developing a policy which limits employee body mass index?

5. What about high cholesterol or fast food consumption?

6. Should the policy apply company-wide or only to certain jobs within the hotel?

7. Does it matter what is listed for the duties on an employee's job description as to whether these types of policies should be enforced?

Role Play:

Imagine you are the owners of a new hotel and are interested in developing an employee manual and a hiring guide for your HR department. In consideration of your business needs (from both a financial perspective, a safety perspective, and a corporate-social responsibility perspective), how should your company regulate off-duty, but legal, behavior (such as eating fast food, being overweight, skydiving, or smoking) if it will save the company money? Develop recommendations for HR on how to hire within those parameters while still following the law (such as appropriate interview questions, relevant language for a job description, and/or language for an employee handbook). Would your answers change if this were a company that has an interest in modeling healthy behavior, such as a hospital?

Questions:

Assume that while operating the shuttle one day after the publication of the new policy, Frank had a heart attack, causing the shuttle to crash and the three guests inside to be injured. As part of the guests' lawsuit against the company for negligence, they allege that the company knew or should have known that Frank was physically unfit to operate a shuttle, was at high risk for a heart attack, and should have taken steps to ensure their safety. What responsibilities did the company have (1) to protect customer safety and (2) to ensure they are not liable for discriminatory conduct? Do you think the company should legally be responsible for the guests' injuries if the crash happened before crafting the policy? What about after crafting the policy? Explain why or why not.

ETHICS QUESTION:

Assume that the company provides the medical evaluations of its employees to the health insurance carrier for a premium adjustment. Upon submission, the health insurance carrier tells the company that if it were to eliminate its three unhealthiest people, it would notice a significant drop in premiums. As the CEO, you calculate that the money you save in those premiums would be significant. In fact, if you terminated the three unhealthy people, their salaries could be used to hire three healthy people, plus a fourth person could be hired from the cost savings of the reduced premium. What decision do you make and why?