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Obesity may be disability but supervisor’s fat-ass comment gets employee nowhere

December 18th, 2013  |  Lorene Park

By Lorene D. Park, J.D.

In a prior blog, I discussed obesity discrimination generally, noting that despite the American Medical Association adopting a policy recognizing obesity as a disease, courts in ADA cases would likely continue doing an individualized assessment of whether an employee’s impairment (obesity) substantially limited one or more major life activities (or was regarded as such). In a December 12, 2013 decision, a federal district court in Illinois did such an analysis and found that an employee’s obesity might fall within that category. I agree on that point but part ways with how the court viewed the context of a supervisor’s comment, which I think clearly suggested bias and could form a causal link to the employee’s subsequent discharge. The court concluded otherwise (Luster-Malone v Cook County).

The long-time hospital employee weighed around 300 pounds in her last five years with her employer. Her supervisor allegedly made “several derogatory remarks” about her obesity, saying “your big fat ass needs to concentrate on losing weight.” Three months after the comment, the supervisor had the employee investigated for allegedly seeking overtime pay for hours she had not worked. The employee was fired two months later and filed suit under the ADA alleging discrimination based on her obesity. The court found that, although her obesity may have been a qualifying disability, the supervisor’s comment did not raise an issue of fact on whether animus toward obese individuals played a role in the employee’s termination.

Obesity as disability. Although the employee’s claim failed on other grounds, the court addressed whether her obesity was an ADA qualifying disability. It observed that “obesity does not generally qualify as a disability under the ADA: as the ADA interpretive guidelines note, ‘obesity is not considered a disabling impairment’ except in “rare circumstances.’” In the court’s view, the employee might meet that standard here.

During most of her tenure at the hospital, she was able to clean her house, go dancing, and walk up and down stairs so her obesity did not appear to substantially limit her in a major life activity. However, she had difficulty walking in the last few months of her employment. Her daughter dropped her off so she would not have to walk through the parking lot. “Although this is not much, viewed in the light most favorable to [the employee], it might nevertheless be sufficient to establish an ADA-covered disability at this stage in the litigation: the evidence is unclear as to whether [the employee] could perform normal activities such as shopping, walking up stairs, or dancing during the period of time when she could not walk across the parking lot.”

“Big fat ass” comment not enough. In the court’s view, alleging “several derogatory remarks” was not detailed enough to find a link between the comments and the termination. As to the more specific “big fat ass” remark, neither the timing (three months before she was investigated and five months before she was fired) nor the context suggested a link between the termination and the supervisor’s animus toward overweight individuals. The remark was allegedly made after the employee pressed her supervisor on why she had not yet received a new computer, not during the course of the overtime investigation, the court noted.

Context should be for jury to decide. First off, to any reasonable person, there is no context where calling someone a derogatory name is appropriate. But here, there was more than just inappropriate behavior. The supervisor made a connection between the employee’s obesity and the conditions of her workplace. The employee inquired about her computer and the supervisor told her “your big fat ass needs to concentrate on losing weight.” Taken together with the fact that the employee had recently gained more weight, the allegation of other derogatory remarks, and the fact that the supervisor was the one who, three months later, started the investigation that led to the employee’s termination (after she had worked for the hospital for twenty-five years), I believe a jury could find a causal link between the termination and the supervisor’s animus against the employee’s obesity. I will be interested to see if the employee appeals.

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