The Unequal Opportunity to Be Healthy: How Whole Foods Market's Wellness Program and Similar Models Create an Issue of Disparate Impact

Abstract

With the enactment of the Affordable Care Act, employers were encouraged to develop wellness programs to promote the health of employees and combat rising healthcare costs. This Article uses the wellness program of Whole Foods Market as a case study in how these programs have a disparate impact on racial minority populations and thus serve to perpetuate racial stratification and inequality by offering better terms and/or conditions of employment to employees who exhibit desired health statuses.A claim of disparate impact under Title VII of the Civil Rights Act is established if a party demonstrates that the business practice in question, while neutral on its face, has a disparate impact on the basis of race, color, religion, sex, or national origin and the employer fails to demonstrate that the business practice is related to the job in question or is consistent with business necessity. Title VII does not prohibit employment practices that have a disparate impact on a protected class if the challenged policy differentiates on the basis of a conduct-based attribute thought to be within the control of the employee, i.e., a mutable characteristic.According to organizations such as the World Health Organization, the American Medical Association, and the American Psychological Association, socioeconomic status is a consistent and reliable predictor of a vast array of outcomes in a person’s life, including physical health. Given long-standing socioeconomic inequality in the United States, racial minority populations are statistically more likely to exhibit negative health statuses. This unfortunate reality has been highlighted by the disproportional impact the COVID-19 pandemic has had on racial minority populations. This Article addresses how Title VII fails to fulfill its mandate of employment equality by specifically addressing the lenient review of an employer’s business-necessity defense and how the consideration of health statuses as wholly mutable characteristics is inconsistent with reality given an analysis of behavioral and social determinants of health.This Article then calls for a reevaluation of the lenient review of employer’s business-necessity defense and a reframing of the mutability of health statuses to ensure Title VII fulfills its congressional mandate of equal employment opportunities for all.