Sponsored by Oregon Business

The law weighs in on obesity

| Print |  Email
Wednesday, February 01, 2006

John McDuffy, a Portland commercial truck driver weighing more than 500 pounds, was suspended without pay after he complained about the size of his truck. The court this past October agreed with McDuffy that this constituted disability discrimination and awarded him lost wages and a monetary sum for emotional distress. Having won the employment discrimination suit, McDuffy also is entitled to his attorney fees.

Oregon law states that when otherwise qualified people are disabled, employers may not (a) refuse to hire, employ or promote them; (b) bar or discharge them from employment; or (c) discriminate against them in compensation or in terms, conditions or privileges of employment. The Americans with Disabilities Act (ADA) contains the same prohibitions.

During McDuffy’s trial, a video of a fi tness-for-duty examination clearly demonstrated his weight did not keep him from performing his duties as a truck driver. Michael Ross, McDuffy’s lawyer, noted the jury seemed most concerned by the fact that there was no reason to suspend McDuffy. After McDuffy complained about the size of the cab of a recently assigned truck, a supervisor e-mailed the human resources department that a bigger truck had been assigned, saying “things seem to be fi ne now.”

No performance problem, medical issue or safety incident prompted the suspension. As McDuffy stated, “I’d always done my job.”

The lesson for employers, supervisors and human resources managers is this: Focus on performance, on doing the job. Don’t make assumptions about the problems an employee may have because of a medical condition; evaluate what the employee is currently doing, just as you would for any other (nonobese, nondisabled) employee.

This also is true for hiring decisions. A 1990 Bureau of Labor and Industries final order found that an Oregon correctional institution employer violated the law by refusing to hire an obese corrections offi cer because the doctor performing the pre-employment medical exam noted an unhealthy heart rate and suggested the individual should lose weight. A closer evaluation by the bureau indicated the applicant would have been capable of performing the job but was not hired because of a perception that his size would impair his ability to perform the functions of the position.

On the other hand, an employer is not required to ignore a serious health condition that the employer reasonably believes may cause a direct threat to others, or to the employee. The classic example is the employee who operates heavy machinery and suffers from epilepsy not adequately controlled by medication. In that situation, an employer is not required to ignore the danger, although the employer should certainly talk to the employee about whether there could be a modifi cation to the position or even an alternate position that would allow the employee to work safely.

This was the defense raised in McDuffy’s case. The employer cited concern for McDuffy’s safety as the reason for suspending McDuffy and ordering him to obtain medical certifi cation of fi tness for duty. Significantly, the employer failed to ask the doctor whether, if a threat existed, some accommodation might be possible to minimize or eliminate that threat. Although the employer returned McDuffy to work after becoming aware there was no danger, the employer refused to pay the wages lost during the suspension.

McDuffy’s lawyer says the case would never have come to trial (saving the employer the costs of defense and damages) if the employer had agreed to pay McDuffy’s lost wages.

Ultimately, employers should keep in mind that disability laws were established to protect employees from arbitrary decisions that would keep them from earning a living. McDuffy wanted only to work and support his family, but was prevented from doing so because his employer apparently acted on assumptions and stereotypes rather than facts — a violation of both the letter and the spirit of the law.

— Shari Lane

Bureau of Labor and Industries, This e-mail address is being protected from spambots. You need JavaScript enabled to view it



More Articles

5 questions for ImpactFlow CEO Tyler Foreman

The Latest
Thursday, August 13, 2015

Portland-based startup ImpactFlow recently announced a $5.7 million funding round. CEO and co-founder Tyler Foreman talks about matching businesses with nonprofits, his time at Intel and the changing face of philanthropy.


Back to School

September 2015
Wednesday, August 19, 2015

Oregon is home to an abundance of gritty warehouses reborn as trendy office spaces, as well as crafty hipsters turned entrepreneurs. Does the combination yield an equally bounteous office products sector? Not so much. Occupying the limited desk jockey space are Field Notes, a spinoff of Portland’s Draplin Design Company, and Schuttenworks, known for whittling Apple device stands. For a full complement of keyboard trays, docking stations and mouse pads, check out the GroveMade line, guaranteed to boost the cachet of even the lowliest cubicle drone. 


Car be gone

Linda Baker
Thursday, August 06, 2015
070615car2goblogthumbBY LINDA BAKER

Car and ride sharing services have taken urban areas by storm. Low-income and suburban communities are left at the curb.


Inside the Box

September 2015
Wednesday, August 19, 2015

Screening for “culture fit” has become an essential part of the hiring process. But do like-minded employees actually build strong companies — or merely breed consensus culture?


Child care challenge

Wednesday, August 26, 2015
0927OHSUhealthystarts-thumbBY KIM MOORE AND LINDA BAKER

Child care in Oregon is expensive and hard to find. We delved into the numbers and talked to a few executives and managers about day care costs, accessibility and work-life balance.


100 Best Nonprofits: Working for equality inside and out

October 2015
Wednesday, September 30, 2015

Striving for social equity is the mission of many nonprofits, and this year’s 100 Best Nonprofits to Work For in Oregon survey shows employees are most satisfied with their organizations’ fair treatment of differing racial, gender, disability, age and economic groups. But as a national discourse about racial discrimination and equity for low-income groups takes center stage, data show Oregon’s 100 Best Nonprofits to Work For still need to make progress on addressing these issues within their own organizations.


Down on the Bayou

October 2015
Monday, September 28, 2015

A Power Lunch at Zydeco Kitchen and Cocktails in Bend.

Oregon Business magazinetitle-sponsored-links-02