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In April of last year, a Louisiana chemical-dependence treatment clinic agreed to settle for $125,000 a lawsuit filed by the Equal Employment Opportunity Commission on a behalf of a deceased woman who had allegedly been fired due to her being severely overweight.

And in July of 2012, BAE Systems Inc. agreed to pay $55,000 to a 680-pound man whom the company had terminated, despite the fact that at the time of his firing, he was qualified to perform the essential functions of his job as a materials handler, according to the EEOC.

While the EEOC has had a long-standing policy to go after employers that discriminate against the morbidly obese (individuals with body mass indexes of more than 40), the debate has turned to the issue of those who are simply “obese” – having a BMI of 30 or more. From some perspectives, 36% of Americans are obese under this definition.

And while there is no outright guidance from the EEOC about barring disability based on obesity, the threat in this area grew after the American Medical Association (AMA) last year classified “obesity” as a disease.

But, obesity discrimination is not as clear cut as other areas of discrimination (think age, sex, race), and as a result, employers need to be wary of this new litigation danger as it poses many issues for employers.

One problem for employers is that they have to balance the safety of their employees with fair treatment as mandated by the Americans with Disabilities Act.

One the one hand, severely obese employees are more likely to get hurt on and off the job (and take longer to recover), miss work and increase the cost of a company’s overall health premiums. At the same time, you can’t sideline someone for being obese, as you risk violating the ADA.

Employment law attorneys say that while a person with a BMI of 32 may not be eligible to receive special accommodations at work for their “disability,” if that weight was caused by another impairment – like Cushing’s disease – or by medication for depression or a thyroid condition, any adverse employment action based on weight would be a case of disability discrimination.

On the other hand, if an employer kept firing only black individuals who were overweight and not white employees, that would be race discrimination. Or, if the employer were firing or treating poorly older obese workers and not younger ones, it would be age discrimination.

Employment law attorneys are expecting a rush of litigation in the coming years based on obesity discrimination. There are two factors that make such an increase likely:

  • The AMA’s recent pronouncement that obesity is a disease, and
  • The Americans with Disabilities Act Amendments Act (ADAAA), which was signed into law by President Bush in 2008. That legislation made it easier for individuals to claim discrimination if an employer acts adversely against them. One key part of the law states that an individual is disabled if they are “regarded as” disabled by their employer.

 

The trend

Before the ADAAA, courts generally rejected obesity discrimination claims, unless it could be shown that it was caused by a physiological disorder. But that’s now changing.

In the first case cited in this article, the employer agreed in a settlement to pay for allegedly discriminating against a former worker who was 527 pounds.

The settlement came after a federal judge in the Eastern District of Louisiana, ruling in EEOC vs. Resources for Human Development Inc., denied both of the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA. The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder.

In the other case, when the 680-pound worker was let go from his job, the linchpin of the case was that the employer failed to engage in any discussion with him to determine whether reasonable accommodations would have allowed him to continue to perform his duties.

 

Employer strategies

In the wake of the AMA’s declaration, it may be more difficult for employers to argue that obesity is not a disability. Employers may also expect to see an increase in claims brought by obese individuals.  Even individuals who are overweight or moderately obese may argue that they too may qualify as disabled.

Also, under the ADAAA’s “regarded as” prong, employees need only show that the employer took action based on its assumptions or beliefs about the employee’s obesity, even if in reality that impairment did not substantially limit a major life activity.

Accordingly, even if the plaintiff does not have an actual disability, simply showing that they were subjected to an action based on the perception that their weight was a physical impairment, may be enough. Similarly, jokes about an employee’s weight may also lead to claims of disability harassment.

To minimize potential liability, you must be vigilant about potential obesity-related claims. This not only means recognizing that the prohibition against discrimination may extend to obese employees, but also an employer’s efforts to handle requests for reasonable accommodation from overweight individuals.

And employers must be careful to avoid any suggestion that employees who are overweight are prevented from doing certain jobs on account of their weight.