Amid the growing concern about body mass index numbers and how it might affect the obesity epidemic in the United States, another problem has emerged. Businesses, some exploiting a loophole in the anti discrimination laws, are refusing to hire people based solely on their weight. Most might do so without being obvious about it, but one Texas hospital is putting their weight bias in writing. Included in the hiring policy of the Citizen's Medical Center in Victoria, Texas, is the provision that they will not hire anyone who has a BMI over 35. For a woman who is five foot, eight inches tall, that is 230 pounds, 260 pounds for a six foot tall man. Other hospitals have similar policies, however, the wording is not as clear and usually do not list a cut off weight, size or other measure.

CMC's Chief Executive, David Brown defended the policy saying that the hospital wanted to "cater" to the preferences of the patients, most of whom are sixty five years old or older. Brown said that those patients had certain "expectations" for appearance. In question is the wording of the policy which was written about an administrative position at the hospital. The Texas Hospital Association has expressed grave concerns for the policy and its wording as well as what it could mean for CMC in the future.

Legal experts are concerned that the policy and others like it in other businesses around the nation could be the warning sign for a new war on weight with the overweight and obese having to resort to lawsuits to assert their rights to employment in positions that they are trained or qualified for. Currently, the American with Disabilities Act, passed in 1990, only protects a very small group of that population. Six US cities, Santa Cruz and San Francisco, California, Madison, Wisconsin, Urbana, Illinois, Binghampton, New York and Washington, DC plus one state, Michigan have additional protection for workers who are overweight. But, with more than two thirds of the population falling in that category, the protection might become more important. According to the wording of the ADA, morbid obesity is only a protected disability if it comes as a result of another qualifying condition.

CMC's chief executive, David Brown is already involved in a discrimination case, stemming from a memo he released in 2007. In that case, Brown wrote about a "sense of disgust" about how many Middle Eastern born doctors were on staff at the hospital.