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    Oct 2014
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    Default Re: Can You Put a Maximum BMI in an Ad for a Female Marketing Employee

    Quote Quoting PayrolGuy
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    I'm a little late the the party and I understand that he wants to put a FEMALE with a <18.5. But it he left out the Female part, under what protected class would that fall?
    Potentially sex and/or race discrimination. Statistics show that men and minorities are more likely to be overweight or obese. Thus, a requirement that focuses on weight can have the effect of preferring white female candidates over male and minority candidates. Even if that was not what the employer intended, if a job requirement nevertheless has the effect of preferring women over men or has the effect of preferring one race over the other it will be illegal discrimination unless the employer can prove that the requirement is necessary for the job. Not preferred, but actually necessary for the job. This facet of discrimination law is one that a lot of employers, particularly smaller firms who do not regularly consult employment law attorneys when crafting their employment policies are unaware. It ends up tripping them up because they do not consider whether the preference they have might have the effect of illegal discrimination. They tend to think that as long as they don’t specifically say they want a man (or woman) or that they want an employee of a particular race they are in the clear. But the courts have held that de facto discrimination — a policy that on its face is not discriminatory but in fact has the effect of discrimination — may also be illegal. For most sales positions an employer will not be able to succeed in making the argument that weight is truly necessary to do the job. Thus my warning to the OP that he/she ought to consult an employment law attorney in Texas to discuss it and learn how to avoid getting smacked by the EEOC or hit with an illegal discrimination lawsuit.

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