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    Question Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    My question involves labor and employment law for the state of: Texas.

    We are in the healthcare business and we currently have two marketers who pound the pavement, visit doctors offices, take lunch, drop off collateral, schmooze with office staff and referring doctors, and assist in organizing and hosting various educational+marketing dinner meetings we host. One is male and one is female, both are reasonably fit and attractive, as is desirable for a position like this.

    We are in need of a 3rd marketer to add to this team, a female. This is an entry level position with lots of potential to make money, hence when we put up job ads for it we are often inundated with responses from interested individuals. However, many don't even meet the basic aesthetic criteria for the job. "Good looks" is subjective I suppose, but overweight is not. I'd like to put a requirement of a BMI of 18.5 or below in the job ad we will soon put up, but I don't want to run afoul of any laws. From what I understand for certain positions where looks matter e.g. actress, Hooters waitress, model, etc, it is perfectly legal to have strict physical criteria that applicants must meet (not to mention logical).

    Can someone comment?

  2. #2
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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    You do not have a position where looks matter...you just do not. You could make an argument that personality matters in a sales rep position, but not looks. On top of that, a BMI of less than 18.5 is considered underweight, so the fact that you are considering a criteria where you want BMI of 18.5 or less is more than a bit absurd. On top of that, you specifically want a female which makes no sense and is also discriminatory.

    I suggest that you have a discussion with your corporate attorney about your hiring practices.

  3. #3
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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Quote Quoting apacheindian
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    My question involves labor and employment law for the state of: Texas.

    We are in need of a 3rd marketer to add to this team, a female.
    This is flat out illegal under federal law assuming your company has at least 15 employees. Federal law specifically prohibits discrimination in employment based on sex. There is no bona fide business reason for restricting this position to a female; men can be just as good at sales as women and vice versa. So starting out looking only for a woman is asking to get sued for illegal discrimination. You should consider applicants of both sexes and give no preference to applicants of either sex. Giving any preference here based on sex violates the law and subjects you to potential legal problems.

    Quote Quoting apacheindian
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    This is an entry level position with lots of potential to make money, hence when we put up job ads for it we are often inundated with responses from interested individuals. However, many don't even meet the basic aesthetic criteria for the job. "Good looks" is subjective I suppose, but overweight is not. I'd like to put a requirement of a BMI of 18.5 or below in the job ad we will soon put up, but I don't want to run afoul of any laws. From what I understand for certain positions where looks matter e.g. actress, Hooters waitress, model, etc, it is perfectly legal to have strict physical criteria that applicants must meet (not to mention logical).
    Even overweight persons can make great sales persons. I have seen such persons myself. Personality and knowledge of the product tend to be what really makes a good salesperson, not being thin. While the laws of most states do not expressly prohibit discrimination based on weight or appearance, you start running into potentially risky area when talking about weight, especially if you do not apply the same standards to both men and women in your company. Traditionally employers have tended to scrutinize weight and appearance issues for women more than men, and in doing so have committed illegal sex discrimination. For that reason, insisting on this kind of requirement will at least raise a red flag suggesting possible illegal discrimination might be at work. While it is fine to insist on a neat and professional appearance for all sales employees, men and women, you should consult an attorney in your area regarding your ideas on limiting applicants here based specifically on weight.

    One other thing to consider: according to the National Institutes of Health, a federal government agency, a BMI less that 18.5 is unhealthy. The healthy range is 18.5 to 24.9. So you are going to be asking for sales people who are actually so thin they are unhealthy. In today’s climate putting any express BMI in your want ad is likely to earn you considerable back lash in public response on social media and elsewhere, even more so when you put a BMI requirement that is considered by health officials to be unhealthy. You could end up with a public relations disaster going this route. For that reason, you probably should consider consulting a good PR firm to see just how your planned ad would likely go over with the public and look for ways to give your company a positive image rather than a negative one.

  4. #4

    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Incredible. I expected an intelligent, informed attorney to reply here. Instead what I got were fat SJW feminists replying. Candidly, I am not asking for what you think is right or wrong or good or bad, or whether or not you think fat salespeople can be good or not, or what you think is "healthy" or not. I didn't ask for any of that. Geezus one can't escape the lunatic leftist SJWs no matter where he goes these days.

    I am asking a black & white question: Is it legal for me to put a BMI requirement in our job ad or not?

    If you don't know the answer or don't like the question please stay out of this thread, go elsewhere. Thanks,

    You are obviously fat and unattractive, hence your defensive post. No matter how hard you try or how bad you want it, the fat acceptance movement you are pushing (so the world will think you are pretty too) will fail. Every single female model is under 18.5 BMI. Underweight? ha, you've really drank the Kool-Aid, what a brainwashed lemming.

    Does Hooters hire any male servers? So are they discriminating?

    Quote Quoting Taxing Matters
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    There is no bona fide business reason for restricting this position to a female

    So why can Hooters hire only female servers? What about strip clubs and female strippers? Who decides what position is ok only for women and which needs to be unisex? You? Some Washington bureaucrat?

    Even overweight persons can make great sales persons. I have seen such persons myself. Personality and knowledge of the product tend to be what really makes a good salesperson, not being thin.
    Another person pushing the HAES movement, you are no doubt a fattie yourself. I don't want fat people representing our organization. It's like having a sign around one's head saying "I have no discipline. I have poor impulse control. I have low standards for myself. I don't care that I'll get disease early and be a financial burden on society. I have low energy. I will get sick more often. And I don't care about any of these things and will continue to eat crap and eat too much!" Who the heck would hire a person like this???

  5. #5
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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Quote Quoting apacheindian
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    Incredible. I expected an intelligent, informed attorney to reply here. Instead what I got were fat SJW feminists replying. Candidly, I am not asking for what you think is right or wrong or good or bad, or whether or not you think fat salespeople can be good or not, or what you think is "healthy" or not. I didn't ask for any of that. Geezus one can't escape the lunatic leftist SJWs no matter where he goes these days.

    I am asking a black & white question: Is it legal for me to put a BMI requirement in our job ad or not?

    If you don't know the answer or don't like the question please stay out of this thread, go elsewhere. Thanks,

    You are obviously fat and unattractive, hence your defensive post. No matter how hard you try or how bad you want it, the fat acceptance movement you are pushing (so the world will think you are pretty too) will fail. Every single female model is under 18.5 BMI. Underweight? ha, you've really drank the Kool-Aid, what a brainwashed lemming.

    Does Hooters hire any male servers? So are they discriminating?



    Another person pushing the HAES movement, you are no doubt a fattie yourself. I don't want fat people representing our organization. It's like having a sign around one's head saying "I have no discipline. I have poor impulse control. I have low standards for myself. I don't care that I'll get disease early and be a financial burden on society. I have low energy. I will get sick more often. And I don't care about any of these things and will continue to eat crap and eat too much!" Who the heck would hire a person like this???
    Dude, contact your corporate attorney for advice. You are done here.

  6. #6
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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    You received a very thoughtful and complete answer from Taxing Matters, who is a lawyer. Your rant was wrongheaded and unnecessary.
    Quote Quoting Taxing Matters
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    This is flat out illegal under federal law assuming your company has at least 15 employees.
    Texas has a similar law. See Texas Labor Code, Sec. 21.002 ("Employer" means: (A) a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year....") and Sec. 21.051 (Discrimination by Employer).

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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Wow...can't wait until that discrimination suit hits your desk. Yes, asking for a female with a BMI at 18.5 is illegally discriminatory. You should read up on Bonafide Occupational Qualifications just to start. This would NOT be a case of a BFOQ. And honestly your rant is ridiculous and generally your attitude is what gets employers sued.

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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Can anyone figure out where this jerk works? Mr. K? So that we can send his rant to his customers? (I've seen some really juvenile and uninformed posts here but this one takes the cake. OP seems to want to get sued! Maybe we can help him out with that?)

  9. #9
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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Quote Quoting apacheindian
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    Incredible. I expected an intelligent, informed attorney to reply here. Instead what I got were fat SJW feminists replying. Candidly, I am not asking for what you think is right or wrong or good or bad, or whether or not you think fat salespeople can be good or not, or what you think is "healthy" or not. I didn't ask for any of that. Geezus one can't escape the lunatic leftist SJWs no matter where he goes these days.
    You got a reply from an informed attorney. I told you what I would have told a client asking me that same question, and you didn’t even have to pay a dime for it. But instead of recognizing what you were given, you get a response you don’t and reply in a rude, insulting manner. Tells me a lot about you. Thank God I’m not one of your employees.

    Quote Quoting apacheindian
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    I am asking a black & white question: Is it legal for me to put a BMI requirement in our job ad or not?
    You got your answer, though apparently you weren’t smart enough to see it. You do understand that not all “black and white” questions have a one word answer, don’t you? Maybe you don’t, based on your reply. But let me give you the answer again and maybe it’ll get through to you. I told that your plan to hire only a woman is flat out illegal and that any preference given to a woman in hiring for that kind of sales position is flat out illegal. Doing that would make a prime target for both the federal Equal Employment Opportunity Commission (EEOC) and for a lawsuit by men denied employment by your firm.

    I also told you that under federal law and the law of most states, it is not expressly illegal to discriminate based on appearance, including weight but that if the effect of the requirement is to engage in sex discrimination then it would be illegal. You don’t have to intend to discriminate for it be illegal; it is enough if it has that effect. As employers have in the past tended to scrutinize the weight and other appearance issues of women more than men, these kinds of requirements can be red flags that draw the attention of the EEOC and eager lawyers that perhaps illegal sex discrimination is taking place. I’ll tell you why. Statistically, more men than women are overweight or obese. Thus, setting a requirement by BMI may have the effect of preferring women candidates which then would make that requirement illegal. So while not expressly illegal, how you apply standards of appearance do matter. If that standard has the effect of preferring one protected group over another, you have a potential problem. That is why I suggested you see an employment law attorney to make sure you do not do this the wrong way and find yourself facing EEOC sanctions and/or expensive lawsuits to defend. Do you get it now?


    Quote Quoting apacheindian
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    You are obviously fat and unattractive, hence your defensive post.
    So you get an answer you do not like and automatically assume I must be fat? That’s one of the most illogical and inane replies I have seen here in a long time. Are you really so defensive that you need to lash out with insults and make stupid assumptions about others? FYI I am not fat, and indeed most of my life I had been way too thin due to a medical condition I have. But I guess for you any answer you get that you don’t like must equate to the person giving the answer being fat, is that it? Incredible.

    Quote Quoting apacheindian
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    Every single female model is under 18.5 BMI. Underweight?
    Every single female model is NOT under 18.5 BMI. If you believe that, you are the one drinking the Kool-AID. And the information I gave you comes directly from NIH health officials — you know, actual doctors and scientists — who know a whole lot more about what is healthy and what is not that you evidently do. While not everyone that has a BMI under 18.5 is underweight, many people under 18.5 are indeed underweight, including a number of models, by the way. That is enough of a problem that France has already started taking legal steps to discourage use of truly underweight models. You need some more education on health, I think. Read the explanation of BMI by NIH and perhaps that will give you the information you seem to be lacking.

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