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Even if you consider obesity to be a voluntary condition, be prudent and treat it as a physical impairment under the ADA.

July 10th, 2012  |  Lorene Park

Historically, obese employees have had difficulty convincing judges they were disabled under the ADA or similar state laws unless they proved that their obesity was due to a physiological disorder. Rather than being a disability, most viewed obesity as merely a voluntary condition caused by a lack of self control. In some jurisdictions, however, this seems to be changing in post-ADA Amendments Act cases. This makes sense, considering the other conditions arguably caused by personal choices (e.g., alcoholism), which are considered disabilities under the ADA.

Most recently, the Montana Supreme Court responded to a certified question by ruling in a 4-3 decision that obesity that is not the symptom of a physiological disorder or condition may constitute a “physical or mental impairment” under Montana law if the individual’s weight is outside “normal range” and affects “one or more body systems” as defined by 29 C.F.R. Sec. 1630.2(h)(1) (BNSF Railway Co v Feit, July 6, 2012, Baker, B). The majority drew on the ADAAA and the various EEOC interpretations to support its conclusion. However, it noted that whether the impairment rises to the level of a disability would turn on whether the obesity substantially limited or is regarded as substantially limiting a major life activity. The plaintiff in that case had a conditional job offer rescinded because of the “significant health and safety risks associated with extreme obesity.”

A federal district court in Mississippi discussed this shift in the law (Lowe v American Eurocopter, LLC, 2010, Aycock, S.). In pre-ADAAA cases, courts typically ruled that obesity is not recognized as a disability under the ADA and that the EEOC’s interpretive guidance at the time provided that except in “rare circumstances,” obesity is not considered a disabling impairment. However, in the court’s view, the ADAAA changed the analysis by expanding what “substantially limits” and “major life activities” mean. In the case before the court, the employee alleged that her obesity substantially limited the major life activity of walking. She also alleged that she was ridiculed and ultimately terminated because of her obesity. The court found that sufficient to state an ADA claim.

In a 2011 case, a federal court in Louisiana ruled that the EEOC presented sufficient evidence to pursue claims of disability bias on behalf of a deceased daycare employee who was morbidly obese and who had been fired because her weight (over 500 pounds) allegedly limited her job performance (EEOC v Resources for Human Development, Inc, Lemelle, I). Relying on EEOC Guidelines, the court held that severe obesity qualified as a disability, and there was no requirement that an underlying physiological basis be proven. Proving a physiological cause was only required when an employee’s weight was within the normal range, stated the court. In this case, the employee was severely obese at all relevant times and had multiple resultant disorders including diabetes, congestive heart failure, and hypertension. To the court, the voluntariness of her condition was irrelevant.

Regarded-as claims. Note that, in the post-ADAAA scheme, proving a “regarded as” claim will be much easier for employees who allege discrimination based on their obesity. Although an employee has to show a substantial impairment of a major life activity to show an actual disability, that showing is not required for post-ADAAA “regarded as” claims. An individual can be covered under the “regarded as” prong by establishing that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Be prudent. Although some district courts still appear reluctant to find obesity to be a disability, employers should add obesity to the list of characteristics that may not be the basis for any type of discrimination or harassment and should incorporate it into anti-discrimination policies and training. Caution managers to avoid remarks that an employee is “too fat” to do something. Such a statement could be used to show, for example, that an employer regarded an employee as disabled.

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