Citing research from the Centers for Disease Control and Prevention, on June 5, 2010, the New York Times reported that one in five women are obese when they become pregnant.  The article states "obesity might be contributing to record-high rates of Caesarean section and leading to more birth defects and deaths for mothers and babies." 

As well illustrated in the NYT piece, the impact on mothers and their families can be heart-wrenching.  But one back story may be the impact on health care costs.  These are pretty eye-opening statistics … the kind that often prompt employers to expand their commitment to wellness programs.  

The pregnancy/obesity risk raises some interesting questions.  First, to effectively combat the risk, it would seem as though wellness efforts would need to target women of child-bearing age.  Such a program does not appear to raise risks under HIPAA or the Americans with Disabilities Act because the program would not be based on a factor related to health.   Rather, it would be based on a combination of age and gender. Would this distinction open the door to claims of age or gender discrimination?  

It might depend on how a program was structured.  Ideally, employers would provide "incentives" or "rewards" for women of child-bearing age if they maintained a healthy weight.  This would seem to dodge the gender discrimination issues that drove the Supreme Court’s landmark decision in UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).  In Johnson Controls, the Court held that Title VII, as amended by the Pregnancy Discrimination Act, forbids sex-specific fetal-protection policies.  But Johnson Controls involved a policy of refusing to employ all women, except those whose infertility was medically documented, in jobs creating potential serious health risks to any fetus carried by a female employee.  Wellness programs properly implemented would provide more favorable treatment to women in this category.

Something for employers to think about as they search for programs that address important social issues that also impact their bottom lines.