With more companies refusing to hire smokers, some employers are wondering if a similar practice may lead to businesses turning down job candidates because they are obese. But the actions are not comparable, says public interest law professor John Banzhaf of George Washington University Law School. And, he adds, the law is not on the side of those who would refuse employment based on weight.

Employers are saying no to smokers because their health care is costly and because it sends the wrong message, according to Banzhaf.

Unlike smoking, however, obesity is considered a disease or a “health status” and is therefore legally protected. Also, obese workers may be subject to protection under the American with Disabilities Act, which does not apply to smokers. Banzhaf says that’s why smokers can be charged more for healthcare insurance.

It’s believed by many that smoking is a choice and the behavior can be stopped. But being overweight is perceived as a result of heredity, genes, childhood habits, and other factors over which an individual has little control. For that reason, a no-obese hiring policy would not be seen as “fair,” he adds.