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53 signing arose from a preexisting legal duty, there was on the applicant completing a physical agility test ad- no consideration. The court rejected the argument that ministered under the direction and control of the em- another Illinois case, in which an exculpatory agree- ployer, participation in the test constitutes acceptance ment related to police training was enforced, was con- of the offer and creates a contract of employment, enti- trolling, finding that the existence of consideration was tling the applicant to workers' compensation coverage not raised as an issue in that case. The court also found for injury sustained during the test.489 that the disparity in bargaining power between the par- ties made the agreement void as against public policy, B. Legal Ramifications of Lifestyle Restriction noting the economic compulsion for those seeking em- In the context of this report, the term "lifestyle" re- ployment. Finally, the court noted the similarity in the fers to physical habits/conditions that could directly relationship between potential employer and applicant affect fitness for duty or other work-related issues (such and the relationship between employer and employee, as cost of health care) and for which an employer could and the fact that exculpatory agreements in the latter test its employees via physical ability tests. This section context relieving the employer from liability for the em- discusses smoking and obesity, two habits/conditions ployer's own negligence have long been considered to be that can both affect job performance and be tested for against public policy. with relative ease.490 On the other hand, a New Jersey court has held that Tests for the presence of nicotine in the bloodstream an exculpatory agreement signed by a police trainee or to measure BMI491 are almost certain to be considered was valid and enforceable.486 In its opinion the court medical examinations and thus must comply with the noted that disparate bargaining power alone will not requirements under the ADA, supra, for medical exams. invalidate an exculpatory agreement, as such a re- Nonmedical personnel could check an employee's quirement would swallow the rule. The court found that weight, but if done as part of a lifestyle program, such an exculpatory agreement was in fact in the public in- weight checking would almost certainly be medically terest because the dangerous nature of the police train- driven and so subject to the same constraints as nico- ing course made injures likely and because striking tine testing and BMI measurement. Thus such lifestyle- down the exculpatory agreement would have a negative related testing would be much easier to justify from a effect on the training program, encouraging those who legal standpoint if conducted on job applicants rather run the program to act out of fear of lawsuits rather than on incumbent employees. Moreover, if included as than in effective preparation of police officers. The court part of a preemployment physical exam, the nicotine also found there was no "positive duty" to protect train- testing would be much less intrusive than if required as ees from harm as expressed in a specific affirmative law a separate test, and so less vulnerable to challenges on or regulation. In addition, the court found that the fact grounds of invasion of privacy. that the trainee had to sign the agreement to partici- pate in the training was not a sufficient basis for find- 1. Smoking492 ing the agreement unconscionable: the employment Many workplaces prohibit smoking on company context did not supply the requisite degree of economic premises, and in fact state laws may limit or prohibit compulsion for unconscionability. smoking in the workplace.493 A more difficult question is Courts are split over the question of whether an ap- whether employers can lawfully prohibit employees plicant injured during a physical ability test is covered from smoking at all. by workers' compensation. One line of opinions holds None of the transit operators surveyed for this report that the applicant is not an employee and therefore is indicated that they impose bans on off-duty use of to- 487 not covered. Other courts have held that the physical ability testing is required for the employer's benefit, so that a constructive employer/employee relationship ex- 489 Dodson v. Workers' Compensation Div., 210 W. Va. 636, 488 ists. The West Virginia Supreme Court of Appeals has 558 S.E.2d 635 (W. Va. 2001). held that where an offer of employment is conditioned 490 There are other causes of general ill health or sleepiness on the job, such as eating junk food or intentionally not getting 486 Marcinczyk v. State of N.J. Police Training Comm'n, 406 enough sleep, but it is difficult to conceive of physical ability N.J. Super. 608, 968 A.2d 1205 (App. Div. 2009). tests for such habits. 491 487 E.g., Younger v. City and County of Denver, 810 P.2d 647 Body mass index (BMI) is a measure of body fat based on (Colo. 1991); Boyd v. City of Montgomery, 515 So. 2d 6, 7 (Ala. height and weight that applies to adult men and women. Cal- Civ. App. 1987). Cf. Standring v. Town of Skowhegan, 2005 ME culate Your Body Mass Index, Department of Health and Hu- 51, 870 A.2d 128 (2005) (finding heart attack suffered by re- man Services, National Institutes of Health, serve police officer during physical agility test for promotion to www.nhlbisupport.com/bmi/. 492 full-time police officer may have arisen out of and in course of See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra employment, so as to be eligible for workers' compensation note 109, at 1.27, Cigarette Smoking. benefits). The Standring court cited the factors in Comeau v. 493 E.g., Iowa Smokefree Air Act, Maine Coastal Servs., 449 A.2d 362, 36567 (Me. 1982), id. at www.iowasmokefreeair.gov/laws.aspx; 10. www.iowasmokefreeair.gov/; Minnesota Clean Indoor Air Act, 488 Laeng v. Workmen's Compensation Appeals Bd., 6 Cal. MINN. STAT. 144.411144.417, www.health.state.mn.us 3d 777, 494 P.2d 1, 100 Cal. Rptr. 377 (1972). /divs/eh/indoorair/mciaa/ftb/mciaa.pdf.

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54 bacco as a condition of hiring or employment. However, pact, and violation of the right to privacy. Generally, health concerns--including the cost of health care-- neither smoking nor nicotine addiction have been held have led some employers to institute such bans. For to be disabilities under the ADA.501 Other courts have example, Weyco, a Michigan insurance benefits pro- rejected arguments that smokers are disabled within vider, banned smoking among its employees. The com- the meaning of the ADA.502 It also appears that there is pany provided a 15-month period for employees to quit not sufficient disparity in smoking rates between ethnic smoking and then began random nicotine testing. groups to mount a successful disparate-impact chal- Twenty employees quit smoking, and four were fired for lenge to a nonsmoking hiring policy.503 refusing to take breathalyzer tests for nicotine.494 Weyco The Tenth Circuit Court of Appeals rejected a consti- was apparently the first company to actually test for tutional challenge to a smoking ban for firefighter 495 504 nicotine use of current employees. The Scotts Com- trainees in Oklahoma City. The plaintiff had signed pany also banned employee smoking, although the re- an agreement that he would not smoke a cigarette on or quirement of being nicotine-free was implemented as a off duty for a period of 1 year after beginning work; he condition of employment for new hires, not for existing was fired for taking three puffs from a cigarette while employees. A new hire who was fired for failing the on break. The plaintiff argued that the smoking ban nicotine screen sued unsuccessfully.496 interfered with his rights of liberty and privacy under Public employers who have banned tobacco use for the Constitution, and that the government may not all new hires include the City of North Miami; Lee unreasonably infringe on an employee's freedom of County, Florida, Sheriff's Office;497 and St. Cloud, Coral choice in non-job-related personal matters. The defen- 498 Gables, and Lighthouse Point, Florida. The St. Cloud dants argued that there was no infringement of liberty ordinance required job applicants to sign an affidavit or privacy interests and that since smoking was not a like the one required by the City of North Miami, infra. fundamental right under the Constitution, no balancing The St. Cloud policy allowed the city to require new of interests was required. However, the Seventh Circuit hires to undergo medical testing to ensure that they are complying with the nonsmoking requirement.499 How- ever, St. Cloud also rescinded its policy in 2006, because 501 Employer on Good Footing with Smoking Ban, Experts the policy did not have the hoped-for effect on insurance Say, Feb. 3, 2005, http://hr.blr.com/news.aspx?id=10761; Tho- costs and inhibited hiring.500 mas Benjamin Huggett, You Smoke, You're Fired: Assessing the Potential grounds for challenging nonsmoking hiring Legal Risks of Smoking-Restriction Hiring Policies, Morgan, and employment policies under federal law include vio- Lewis & Bockius LLP, Labor and Employment Law Seminar, lations of the ADA, disparate treatment, disparate im- Oct. 27, 2005, www.morganlewis.com/pubs/LEPG05_Smoke_Fired.pdf; Joe 494 Jeremy W. Peters, Company's Smoking Ban Means Off- Robinson, Light Up, Lose Your Job, LA TIMES, Feb. 19, 2006, Hours, Too, N.Y. TIMES, Feb. 5, 2005, http://articles.latimes.com/2006/feb/19/opinion/op-robinson19 www.nytimes.com/2005/02/08/business/08smoking.html (ac- (accessed Oct. 24, 2009). See Brashear v. Simms, 138 F. Supp. cessed Oct. 23, 2009). 2d 693 (D. Md. 2001); Ranger Fuel Corp. v. West Va. Human 495 Edelman, Finding Wealth Through Wellness: How Engag- Rights Comm'n, 180 W.Va. 260, 376 S.E.2d 154 (1988) (use or ing Employees in Preventive Care Can Reduce Healthcare abuse of tobacco in absence of medically verifiable addiction Costs, An Executive Guide to Corporate Wellness Programs, not physical or mental impairment). However, if a prima facie Fall 2006, www.edelman.com/image/insights/content/ case were established, it could be argued that reducing costs by Wellness_White_Paper.pdf, at 11. banning smoking is not permissible under the ADA: 496 Jonathan Saltzman, Smoker Who Lost Job Loses in A desire to reduce costs associated with smokers that is Court, BOSTON GLOBE, Aug. 8, 2009, predicated on the assumption that employees who smoke have www.boston.com/news/local/massachusetts/articles/2009/08/08/ more health-related conditions, which lead to greater insurance claims, greater absenteeism and increased injuries, is unlikely smoker_who_lost_job_loses_in_court/ (accessed Oct. 24, 2009). to be successful. Under ADA law, an argument can be made that The plaintiff alleged that the anti-smoking policy violated his this asserted legitimate nondiscriminatory business reason is, in right to privacy and 29 U.S.C. 1140, Interference with pro- fact, still a violation of the ADA because an employer would be tected rights. The court ruled that the plaintiff did not have a using smoking as a proxy for other disabling medical conditions privacy interest because he had smoked openly, and was not to which the employer apparently believes the smoker is suscep- protected under 1140 because he was not yet a bona fide em- tible, such as lung cancer or emphysema. ployee. Huggett, at 39. 497 Lee Sheriff Bans New Hires Who Smoke, ST. PETERSBURG 502 Micah Berman & Rob Crane, Tobacco Law Symposium, TIMES, Oct. 23, 2002, Mandating a Tobacco-Free Workforce: A Convergence of Busi- www.sptimes.com/2002/10/23/State/Lee_sheriff_bans_new_. ness and Public Health Interests, 34 WM. MITCHELL L. REV. shtml (accessed Dec. 1, 2009). 1651, 1661 (2008). 498 April Hunt & Susan Jacobson, Tobacco Users Need Not 503 Nate Kowalski & Chris Milligan, Banning Off-Duty Apply, THE ORLANDO SENTINEL, Mar. 27, 2002, Smoking, CALIFORNIA LAWYER, 36, 37 (Aug. 2007), http://articles.orlandosentinel.com/2002-03- www.aalrr.com/files/Publication/7d561ca8-81d6-4e57-bbee- 27/news/0203270291_1_sue-luglio-tobacco-smokers. 03c6b6f77128/Presentation/PublicationAttachment/01533eb7- 499 Id. 409a-48a7-9abd-04f781822ebc/mcle.pdf (accessed Dec. 6, 2009). 500 504 Linda Florea, St. Cloud Hires Smokers Again, THE Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th ORLANDO SENTINEL, May 24, 2006, at D7. Cir. 1987).

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55 looked to the approach of Kelley v. Johnson,505 in which side of work. Seventeen states specifically prohibit mak- the Supreme Court assumed a liberty interest in per- ing employment decisions based on off-duty use of to- sonal appearance, but recognized interests of state and bacco, seven states based on off-duty legal activity or local governments as employers that are stronger than consumption of legal products, and another three for interests those governments have vis--vis the general reasons that would cover the use of tobacco.507 North population. Thus, employment requirements need not Dakota's statute was intended to protect a range of meet the standard of other regulatory requirements: a nonwork conduct, including "an employee's weight and government employee challenging a government em- smoking, marital, or sexual habits."508 Even laws pro- ployment requirement must show that there is no ra- tecting off-duty tobacco use may have exceptions for job- tional relationship between the requirement and safety related smoking bans.509 Moreover, the state laws may 510 of persons and property. In applying those principles to protect incumbent employees but not job applicants. the smoking ban, the Seventh Circuit both assumed a For over 2 decades, Massachusetts has banned liberty interest protecting the trainees' right to smoke smoking off or on the job for police and firefighters.511 and presumed the regulation to be valid. The court The personnel administration rules implementing this noted considerations of health, particularly for fire- legislation require the termination of an employee vio- 512 fighters exposed to smoke, sufficient to establish a lating the requirement. The Massachusetts Supreme prima facie rational basis for the regulation. The court Judicial Court upheld both the statute and implement- also noted the questionable aspect of banning smoking ing regulation, holding there was no discretion as to for first-year firefighters but not for other firefighters, whether to terminate an offending employee. The court but declined to examine an equal protection argument found that the legislature had made the judgment that not raised by the parties. The court then found that the police and firefighters were already at high risk of de- plaintiff had not demonstrated that the requirement veloping hypertension and heart disease due to the na- was irrational. Accordingly the court upheld the regula- ture of their jobs, and that to decrease the risk of such tion. employees needing to retire with disability benefits, had As to privacy claims, the Florida Supreme Court re- banned an activity that would increase that risk.513 Flor- jected a constitutional challenge to a smoking ban im- ida state law also prohibits firefighters from using to- posed by the City of North Miami on job applicants.506 bacco,514 a provision that was supported by at least one The city had made a policy decision to reduce the num- ber of employees who smoke tobacco to reduce costs and increase productivity. To do so, the city required all job 507 See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra applicants to sign an affidavit attesting that they had note 109; Berman & Crane, supra note 502, at 1651. See also not smoked for a year, with the goal of gradually reduc- Jill Yung, Big Brother IS Watching: How Employee Monitoring ing the number of smoking employees through attrition. in 2004 Brought Orwell's 1984 to Life and What the Law Once hired, there was no requirement regarding smok- Should Do About It, 36 SETON HALL L. REV. 163, 193, n.139, ing. The Florida court rejected the argument that the [list of states with such statutes], citing Marisa Anne inquiry into smoking status violated the job applicant's Pagnattaro, What Do You Do When You Are Not at Work?: Lim- iting the Use of Off-Duty Conduct as the Basis for Adverse Em- reasonable expectation of privacy concerning smoking. ployment Decisions, 6 U. PA. J. LAB. & EMP. L. 625, 628 However, the court specifically reserved the question of (2004). whether a government agency could require an incum- 508 Pagnattaro, supra note 507, at 659, citing Hougum v. bent employee to stop smoking under the Florida Con- Valley Mem'l Homes, 1998 ND 24, P 40, 574 N.W.2d 812, 821. stitution. The court found that there is no federally- 509 See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra protected right to smoke under the penumbra of privacy note 109; Berman & Crane, supra note 502, at 1659, 1662, of the federal constitution, citing Grusendorf, and that 1664. even if there was, there was sufficient rational basis for 510 Berman, at 1662, citing Christopher Valleau, If You're the regulation to support its constitutionality. Smoking You're Fired: How Tobacco Could Be Dangerous to The legality of absolute bans on the use of tobacco More than Just Your Health, 10 DEPAUL J. HEALTH CARE L. will depend on whether state law prohibits controlling 457, 479 (2007). But see ROTHSTEIN, CRAVER, SCHROEDER & employee conduct outside of the workplace and whether SHOBEN, supra note 492, citing 18 state laws protecting appli- state law provides that employment is at will. Almost cants. 511 half the states allow restrictions on use of tobacco out- MASS. GEN. LAWS c. 41, 101A, www.mass.gov/legis/laws/mgl/41-101a.htm. 505 512 25 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). Town of Plymouth v. Civil Serv. Comm'n, 426 Mass. 1, 3, 506 City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 686 N.E.2d 188, 189 (1997). 513 1995). The City of North Miami has reportedly since repealed Id. at 191. the ban because of the ban's affect on the organization's ability 514 FLA. STAT. 633.34 Firefighters; qualifications for em- to hire otherwise qualified workers. Daniel Schorn, Whose Life ployment, Is It Anyway? Are Employers' Lifestyle Policies Discrimina- www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_ tory?, 60 Minutes (CBS television broadcast July 16, 2006), Statute&Search_String=&URL=Ch0633/SEC34.HTM&Title=- www.cbsnews.com/stories/2005/10/28/60minutes/main990617_ %3E2009-%3ECh0633-%3ESection%2034#0633.34. page3.shtml?tag=contentMain;contentBody (accessed Oct. 24, Applicants for positions as a firefighter in Florida must sign a 2009). tobacco affidavit. See also Florida's firefighters support dollar a

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56 firefighter's union and the state insurance commis- quirement concerning conditions related to cardiac fail- sioner.515 California law prohibits an employer from re- ure, but would not have the same force as a statutory jecting job applicants or discharging employees because exemption. of lawful conduct occurring off duty, but provides an Takeaway: In drug testing cases, courts often note exception for firefighters and tobacco consumption.516 the fact that drug tests that are part of a lawful medical Moreover, California courts have held that these provi- examination, so that the test for a controlled substance sions do not provide independent bases for a public pol- is merely an additional test run on blood or urine col- icy claim.517 lected in any event, are less intrusive and so less objec- Where state law prohibits nonsmoking policies, tran- tionable from a constitutional standpoint than stand- sit agencies may consider incentive programs. Such alone drug tests. Similarly, nicotine tests that are part programs must comply with the requirements under of lawful medical exams, such as preemployment physi- the Health Insurance Portability and Accountability Act cals, should be deemed less intrusive than stand-alone (HIPAA)518 that employees not be charged higher pre- tests, and thus less vulnerable to legal challenge. miums or otherwise discriminated against in provision of health insurance based on a health factor. HIPAA 2. Obesity521 provides parameters under which an incentive program Federal.--The Supreme Court has explained that the can be established without constituting discrimination ADA "allows employers to prefer some physical attrib- under HIPAA.519 utes over others and to establish physical crite- Where state law does not prohibit nonsmoking poli- ria....[A]n employer is free to decide that physical char- cies, the employer must keep in mind the requirements acteristics or medical conditions that do not rise to the of the Employee Retirement Income Security Act of level of an impairment such as one's height, build, or 520 1974 (ERISA). ERISA prohibits terminating an em- singing voice are preferable to others."522 This part of ployee from an ERISA plan because of higher health Sutton does not appear to be affected by the ADAAA. care costs; a policy that prohibited smoking among cur- Thus, for the most part, weight is not a legally pro- rent employees could be vulnerable to an ERISA chal- tected characteristic. The Second Circuit, for example, lenge, as one of the rationales for a nonsmoking policy has held that a fire department did not engage in is the negative health effects of smoking. However, the unlawful discrimination in establishing weight restric- ERISA prohibition does not apply to job applicants, so a tions and requiring firefighters who did not meet those policy screening out smokers during the hiring process restrictions to either meet a body fat measurement re- would appear not to present any ERISA liability. quirement or take an alternative physical fitness Takeaway: Absent state law to the contrary, a ban on exam.523 The Francis court held that "no cause of action off-duty use of tobacco is likely to survive constitutional lies against an employer who simply disciplines an em- challenges and stands a good chance of surviving a pri- ployee for not meeting certain weight guidelines."524 vacy claim, particularly if the nicotine test is part of an Cases upholding an employer's ability to impose ap- already authorized medical exam. Some state laws that pearance and grooming standards suggest that weight protect the right to use tobacco off duty contain an ex- restrictions--absent countervailing state law--should emption for firefighters or law enforcement personnel be permissible, provided that they are applied equally because of the connection between tobacco use and as to race, national origin, and gender.525 health problems. That same connection provides a If, however, an employer imposes weight restrictions safety rationale for prohibiting transit operators from that differentiate based on sex or race, such restrictions using tobacco off duty, particularly given the CDL re- would be impermissible. Airline weight requirements imposed solely on female flight attendants or imposed pack increase for safer and healthier Florida, Mar. 26, 2009, 521 A bus company in Manchester, England, recently insti- www.iaff747.com/docs/FPF%20Release%203-26-09.pdf. tuted a 23 stone (333 lb) weight limit for bus drivers, based on 515 Group Seeks Ban for Smoking Firefighters, GAINESVILLE the maximum safe working loads for bus seats set by the SUN, Mar. 14, 1989, manufacturers. Dean Kirby, Bus Drivers Given 23 Stone http://news.google.com/newspapers?id=1QgSAAAAIBAJ&sjid= Weight Limit, MANCHESTER EVENING NEWS, Oct. 3, 2009, L-oDAAAAIBAJ&pg=1598,4783880&hl=en (accessed Dec. 6, www.manchestereveningnews.co.uk/news/s/1154242_bus_drive 2009). rs_given_23_stone_weight_limit (accessed Dec. 10, 2009). 516 CAL. LAB. CODE 96(k) and 98.6, 522 Sutton v. United Airlines, 527 U.S. 471, 490, 119 S. Ct. www.leginfo.ca.gov/cgi- 2139, 2150, 144 L. Ed. 2d 450, 467 (1999). Moreover, the EEOC bin/displaycode?section=lab&group=00001-01000&file=79-107. Guidelines state that obesity is rarely found to be a disability. 517 Nate Kowalski & Chris Milligan, supra note 503, at 38, 29 C.F.R. pt. 1630 app. 1630.2(j). See III.B.2., Definition of citing Barbee v. Household Automotive Finance Corp., 113 Cal. Disability, supra this digest. App. 4th 525, 6 Cal. Rptr. 3d 406 (2003), Grinzi v. San Diego 523 Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). Hospice Corp., 120 Cal. App. 4th 72, 14 Cal. Rptr. 3d 893 524 Id. at 286. (2004). 525 518 Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104 104 Pub. L. No. 199, 110 Stat. 2419 (1996). (9th Cir. 2006) (upholding requirement for female bartender to 519 Kowalski & Milligan, supra note 503, at 38. wear makeup, finding grooming standards posed equivalent 520 29 U.S.C. 301 et seq. burdens on male and female employees).

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57 more rigorously on female flight attendants, for exam- would be considered job related for a non-safety-related ple, have been held to violate Title VII.526 employee. It is also possible that an enforcement agency would Testing for obstructive sleep apnea based on BMI accept a charge alleging that height/weight require- may be more defensible if the FMCSA or FTA issues ments have an adverse impact on a protected class, regulations requiring screening. FMCSA guidelines such as women or certain ethnic groups.527 A finding of describe sleep apnea as disqualifying,530 but there are no adverse impact would mean that such requirements FMSCA requirements for screening for obstructive would have to be justified as job related and consistent sleep apnea. As of October 2009, there do not appear to with business necessity. For example, a showing that a be any existing programs that routinely screen bus or threshold BMI made it likely that an employee would rail operators for obstructive sleep apnea.531 suffer from obstructive sleep apnea and thus be vulner- State.--Michigan's Elliott-Larsen Civil Rights Act able to falling asleep on the job might justify requiring specifically includes height and weight in the list of 532 vehicle operators meeting that threshold to be tested for prohibited bases for discrimination in employment. obstructive sleep apnea.528 The NTSB has recommended Although it appears that Michigan is the only state to that bus drivers be screened for obstructive sleep ap- prohibit discrimination based on weight, San Francisco 529 nea. It is uncertain whether such a requirement and Santa Cruz, California, also prohibit discrimination based on weight.533 The District of Columbia Human 526 Gerdom v. Cont'l Airlines, Inc., 692 F.2d 602 (9th Cir. Rights Law prohibits discrimination based on personal 1982) (strict weight restrictions imposed on female employees appearance, which requirement could affect weight but not on male employees performing substantially similar standards.534 Absent such prohibitions, simple weight duties held to violate Title VII); Frank v. United Airlines, Inc., restrictions should be permissible.535 216 F.3d 845 (9th Cir. 2000) (finding weight restriction policy In 2007, a candidate sued LA Metro alleging that LA facially discriminatory where employer did not use equivalent Metro had failed to hire her based on her perceived dis- ranges within height and weight tables to determine maximum 536 allowable weights for male and female employees). ability of obesity. Having lost at the trial court level, 527 the plaintiff appealed the disability ruling and raised Response to TCRP Questionnaire from Cynthia Hyatt, Legal Counsel, State of Rhode Island Commission for Human an equal protection argument. The plaintiff had applied Rights, June 15, 2009; Nina G. Stillman, The Unbearable for a position as a bus operator. The preemployment Heaviness of Hiring: Assessing the Legal Risks of Weight- physical revealed her BMI to be 57.55 percent, which Restriction Hiring Policies, Morgan, Lewis & Bockius LLP required her to undergo the BOCAT, a functional seat Labor and Employment Law Seminar, Oct. 27, 2005, at 3-1, www.morganlewis.com/pubs/LEPG05_Smoke_Fired.pdf (ac- cessed Oct. 22, 2009). Stillman raises the possibility of actions 530 Frequently Asked Questions (FAQ)--Medical: 26. Is under 510 of the Employee Retirement Income Security Act Sleep Apnea Disqualifying? www.fmcsa.dot.gov/rules- (Pub. L. No. 93-406, Sept. 2, 1974) and the Health Insurance regulations/topics/medical/faqs.aspx?#question26. Portability and Accountability Act (Pub. L. No. 104-191, Aug. 531 National Transportation Safety Board, Safety Recom- 21, 1996), topics which are beyond the scope of this digest. It mendation H-09-15 and -16, Oct. 20, 2009, appears that the risk of adverse impact of a weight restriction www.ntsb.gov/recs/letters/2009/h09_15_16.pdf. is greater under Title VII (for members of ethnic groups with a 532 MCL 37.2102 Recognition and declaration of civil right; propensity to being overweight) than under the ADA (given the action arising out of discrimination based on sex or familial requirement for physiological cause of obesity), although the status, change in the requirement for being "regarded as disabled" www.michigan.gov/documents/act_453_elliott_larsen_8772_7.p could affect that calculus. 528 df. A Michigan court has held that a minimum height require- The Joint Task Force of the American College of Chest ment for firefighters, without showing that minimum height to Physicians, American College of Occupational and Environ- be a BFOQ, violates this provision. Because height itself is a mental Medicine, and the National Sleep Foundation has iden- protected characteristic, a showing of disparate impact on a tified screening recommendations for commercial drivers with protected class is not required. Rather a height requirement, possible or probable sleep apnea. These include having two or whether for men or women, is only allowed if it can be shown to more of: BMI greater than 35 kg/m; a neck circumference be a BFOQ. Micu v. City of Warren, 147 Mich. App. 573, 382 greater than 17 in. in men, 16 in. in women; or hypertension. N.W.2d 823 (1986). Natalie Hartenbaum, Nancy Collop, Ilene M. Rosen, Barbara 533 Phillips, Charles F.P. George, James A. Rowley, Neil Freed- Edelman, Finding Wealth Through Wellness: How Engag- man, Terri E. Weaver, Indira Gurubhagavatula, ing Employees in Preventive Care Can Reduce Healthcare Kingman Strohl, Howard M. Leaman, Gary L. Moffitt & Mark Costs, An Executive Guide to Corporate Wellness Programs, R. Rosekind, Sleep Apnea and Commercial Motor Vehicle Op- Fall 2006, at 11, erators, JOEM, vol. 48, no. 9, Supplement Sept. 2006, www.edelman.com/image/insights/content/Wellness_White_Pa www.acoem.org/uploadedFiles/JOEM%20Sept%2006%20- per.pdf. 534 %20Sleep%20Apnea%20Supplement.pdf. D.C. CODE 2-1401.011403.17 (2001 & Supp. 2007). 529 NTSB, Safety Recommendation R-09-9, supra note 22, at Ivey v. District of Columbia, 949 A.2d 607 (D.C. App. 2008). 535 5; Joan Lowy, Safety Board Issues Wake-up Call on Sleep Dis- Ohio state troopers fight weight limit rule, June 2, 2009, order, THE SEATTLE TIMES, Oct. 21, 2009, www.msnbc.msn.com/id/31069019/ns/health- http://seattletimes.nwsource.com/html/politics/2010104008_ap diet_and_nutrition/ (accessed Oct. 29, 2009). 536 usntsbsleepapnea.html?syndication=rss (accessed Oct. 24, Hines v. L.A. County Metro. Transp. Auth., B208389 2009). (Cal. App. 2009, Nov. 6, 2009).