The Wal-Mart Memo: Does It Break The Law?

Wal-Mart has managed to create another PR nightmare for itself. This week, an internal memo (p.14) suggesting that Wal-Mart discourage unhealthy people from applying for jobs has raised hackles from the usual anti-Wal-Mart suspects. But it might also raise a lawsuit.

If you're reading this blawg, you're probably aware that the ADA and (in California) the FEHA prevent discriminatory hiring practices against those with disabilities.

Nothing in the memo suggests that this is anything but a proposal, and it probably wasn't vetted by the company's lawyers. Even still, nothing in it is per se discriminatory. Instead of trying to exclude the disabled, instead it's trying to attract health-conscious workers.

I'm not an ADA jock. I don't know enough to say for certain whether or not this all on its own violates the ADA, but my sense is that it doesn't, and, if it does, it's bad policy. Given the bovine nature of America, the country's largest employer should do something to encourage more physical activity!

The SEIU's spokesperson told the WSJ (sub. req'd) that
"When you add physical requirements to jobs that don't need them, you begin to weed out a whole pool of people such as the elderly, the obese, people with pre-existing medical conditions," says Andrew Stern, president of the Service Employees International Union, which represents 1.8 million workers, including health-care workers, janitors and security guards. "I think this memo steps over the line of what's legal," he adds.
There is an argument that they might be unnecessarily adding tasks to job descriptions. Here's where I'd ask for some reader feedback. To what extend does the FEHA or ADA mandate than an employer create job descriptions? Can the ADA stop Wal-Mart from making cashiers collect carts? If so, what else can't they do? Do employer have to create job descriptions that are always carefully calibrated according to potential disability impact?