hiring someone who will need two airplane seats when she travels

A reader writes:

I am currently in the process of hiring a senior, regional-level manager. This person will need to travel extensively by plane.

We are nearing the end of our hiring process. The woman who has emerged as the strongest candidate is very large and in order to travel by plane will need to use either first-class seating or two coach seats (I am also a large woman who barely fits in a coach seat, so I know with certainty that she will not fit in a standard seat).

My questions:

1) If we choose to hire her, what are our obligations for her travel? Should we plan on purchasing upgraded or extra seats for her? Should we purchase the usual seat an expect her to cover the additional cost on her own?

2) If we choose to hire her, how do we have a conversation with her about how we will handle purchasing flights (regardless of whether we pay or she does)?

3) If we decided to cover the additional cost of her travel, it would significantly increase our travel budget for this role. I’m not sure I can get approval for that from our finance department. But if she is the strongest candidate for the job, it seems wrong to not choose her based on her body size.

Can you help?

I think if you hire her, you’ve got to assume that you’ll be buying two seats for her each time she travels. (I would not assume that you’ll need to buy business class tickets, which are usually significantly more expensive than two seats in coach.) It wouldn’t be reasonable for her to shoulder the cost of the extra seat each time; in a job with frequent air travel, she’d be paying quite a bit of money just to do her job.

I’d think of it like a medical accommodation that you might make in other contexts. And as with other accommodations, the question would be whether courts would consider it an unreasonable hardship for your organization. (That’s the very hazy and inexact standard set out by the Americans with Disabilities Act.)

As for how to discuss it if you do end up hiring her, I think you’d bring it up once she was on the job by asking something like, “Do you have any preferences that we should know about as far as air travel?” (Actually, whoever will be booking her travel would ideally ask this, and you’d coordinate ahead of time with them to let them know that two seats for her have been okayed.)

Because this is a tricky, tricky area of law, I asked an employment lawyer to weigh in (who regularly goes by Employment Lawyer in the comments here). Here’s his response:

“The law can be inefficient. Obviously it would be better for you both if you could discuss this openly: she would rather not waste time if she won’t get hired, and you would rather not reject your top candidate (much less do so based on mistaken assumptions). Unfortunately, I don’t think you should assume that you can safely discuss this. If you decline to hire someone after finding out that they have a covered disability, you may expose yourself to a lawsuit.

That is true even though the issues are not entirely clear-cut. Certainly there appears to be a growing sense that obesity can be a ‘disability.’ Even if it is not considered a disability under national law, state laws can also be more stringent than national ones; I won’t presume to guess what they are in every state. Moreover, even if obesity isn’t a disability now, it seems possible it will be classified as one in the future. If so, then a covered employer would need to make an accommodation. This process doesn’t begin until an employee makes a request for an accommodation–which can be formal, or which can be something like saying, ‘I am going to need you to buy two seats for me because I cannot fit in one seat.’

*If we assume for the moment that this is a disability,* then whether or not this particular hiring manager thinks that ‘two seats’ is not a reasonable accommodation is not an issue. Most obviously, they could it be wrong; an employer’s view of ‘reasonable’ is often much more limited than the law requires. But also, this is the wrong time to bring it up: the parties are functionally expected to engage in a back and-forth about accommodations AFTER hiring; an employer should not make a unilateral decision before hiring.

If you really feel like you could not hire her if she needed two seats, then you should consult an employment attorney in your state to make 100% sure that this is not a covered disability, and then you can consider asking about it or declining to hire her. But frankly, for a high-level manager, it seems that qualifications are going to be a lot more relevant than a few thousand extra dollars on plane tickets.”

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