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Morbid obesity not a per se disability under West Virginia law; blackjack dealer fired for not tucking in shirt lacked a viable claim

By Lisa Milam-Perez, J.D.

A 540-pound blackjack dealer, who was fired after being twice disciplined for violating a casino’s dress code and break policies, could not show that he was disabled under the West Virginia Human Rights Act (WVHRA), the state high court held in an unpublished decision (Andrew O. v Racing Corp of West Virginia d/b/a Mardi Gras Casino and Resort, June 24, 2013, per curiam). Obesity is not a per se disability under the state law, and the employee failed to establish that he was restricted in any major life activity.

Obesity-related challenges. The employee, who had struggled with his weight since childhood, was diagnosed with thyroid disease at age 12 and had arthritis in his legs and back. (He never provided medical documentation to his employer on these conditions, however.) He contended that because of his morbid obesity, he could not find clothing that fit him properly and he was restricted in standing and walking. His job required him to wear a company-supplied uniform that included a long-sleeved tuxedo shirt, a bow tie, an apron, and black pants. Dealers were required to keep their tuxedo shirts tucked into their pants and their sleeves rolled down and buttoned at the wrists. The casino struggled to locate a tuxedo shirt that would fit him, and considered having one custom-made before it finally found a size 7X shirt online that its seamstress altered for the employee. He said the shirt did not fit him in such a way that he could tuck it into his pants, though.

The employee also had trouble walking to and from the break area for his 25-minute breaks — he was left fatigued and short of breath — and difficulty standing for long periods of time. He provided a doctor’s note stating that, due to his weight condition, he needed to sit down at work. His immediate supervisors were accommodating: they allowed him to wear his shirt outside his pants, at least until another solution could be found. They also permitted him to take breaks in a public area normally reserved for patrons’ use.

Although the employee asserted that he had contacted several higher-level supervisors as well as HR regarding the need for these accommodations, the employer claimed he never approached the correct individuals as directed in the employee handbook. Having been properly supplied with the doctor’s note, though, the casino did assign the employee a wheelchair-accessible blackjack table so he could sit while he worked.

Reprimand, discharge. The employee was reprimanded for violating the dress code: his shirt was not tucked in, he was not wearing his apron, and his sleeves were rolled up. He was also reprimanded for not taking a break in the designated area. A week later, he was issued a second warning for taking breaks outside the break area. He explained that he could not make it to and from the designated location during the allotted time and asked the casino’s assistant director of gaming for an accommodation. But the request was rejected; the doctor’s note indicating he was unable to stand while working did not support his request for an alternate break location. When the employee offered to secure a second doctor’s note, he was designated a temporary alternate break area. An hour into his next shift, though, he was suspended and subsequently terminated for dress code and break area violations. In all, he worked at the casino for less than two months.

No per se disability. Obesity is not a per se impairment under the WVHRA, the court below correctly found in disposing of his state law disability discrimination suit. The rules promulgated by the state human rights commission do not include “obesity” in the list of physical impairments that typically denote a particular disability.

Nor did the court below err in refusing to interpret the WVHRA in accordance with federal cases applying the ADA. In one such case, EEOC v Resources for Human Development, Inc (2011), a federal court observed that under the EEOC’s ADA regulations, obesity may be an “impairment” if it is “severe” or results from a physiological disorder. Such was his case, the employee argued, and had the court applied the ADA, it would have found him to be disabled. However, the West Virginia legislature has not amended the WVHRA to conform to the amendments to the federal statute under the ADAAA. At any rate, the state high court noted, it has previously stated that “while federal disability jurisprudence may prove helpful in interpreting the WVHRA, the WVHRA ‘as created by our Legislature and as applied by our courts and administrative agencies, represents an independent approach to the law of disability discrimination that is not mechanically tied to federal disability discrimination jurisprudence.’”

Not substantially limited. The employee also argued that he was disabled under the WVHRA because he was physically impaired and his impairments substantially limited one or more of his major life activities. Specifically, he argued, his morbid obesity, thyroid condition, and arthritis substantially limited his endurance while standing and walking and his ability to care for himself due to his difficulty in finding clothing to dress himself. But he did not provide any medical documentation regarding the thyroid condition and arthritis; what’s more, he admitted at his deposition that he does not take any medication for the thyroid disease, and that his physician did not attribute his obesity to any underlying health issue.

Moreover, as the lower court found, he essentially conceded in deposition that he was “able to do everything that an average person is capable of doing.” The employee urged on appeal that what he actually said was that “I can do almost everything; It’s just that I have to go at my own pace.” But that was sufficient, the high court concluded, to establish he was not substantially limited. Also, his doctor’s note did not indicate he was substantially limited in a major life activity. Thus, he could not make such a showing.

Not regarded as disabled. The employee also alleged he was regarded as disabled, and therefore was disabled within the meaning of the statute. In his view, the fact that the casino accommodated him by allowing him to sit and attempted other accommodations were “indisputable proof” that it regarded him as disabled. The casino countered that it did not regard him as disabled — rather, it regarded him as “an obese employee with limitations.”

Merely attempting to accommodate an employee’s needs is not enough to show that an employer considers that employee to be disabled. Here, the fact that the assistant director of gaming balked at the prospect of providing an alternate break location absent medical documentation underscores the fact that the casino did not regard the employee as  disabled. “It is sound business policy for an employer to assist an employee in performing his or her job functions. However, we do not find that assisting an employee with a particular need, such as allowing the employee to sit while working, automatically means that the employer considers that employee to be disabled,” the court wrote.

Legitimate reason for discharge. Finally, even if the employee had established a prima facie case that he was disabled or regarded as such, the casino offered legitimate, nondiscriminatory reasons for discharging him: ensuring that employees were properly dressed and keeping them away from patrons while on break. The lower court correctly found these reasons wholly unrelated to the employee’s obesity, particularly given that the hirer and firer were the same individual, and the termination came within a relatively short period of time after the initial hire. Under these circumstances, the law allows for a strong inference that discrimination was not a determining factor in the adverse action. Because that inference applied here, summary judgment for the casino was affirmed.