By Eric B. Meyer

Recently, the EEOC sued a Texas company, alleging that the company engaged in disability discrimination, in violation of the Americans with Disabilities Act, when it fired a 680-pound worker because he was morbidly obese.

Is that right? Can being overweight be considered a “disability” under federal law? And, if so, what can companies do to find themselves staring down the barrel of loaded ADA lawsuit?

As discussed here on the blog last week, a physical or mental impairment that substantially limits one or more major life activities is considered an actual disability. The term “substantially limits” is now construed broadly in favor of expansive coverage. Additionally, whether an impairment substantially limits a major life activity is determined without regard to the ameliorative effects of mitigating measures (like medications or treatment).

Is morbid obesity considered an ADA disability?

Does that mean that a 680-pound man disabled? Let’s check the facts. In its complaint, a copy of which you can find here, the EEOC alleges that the worker’s morbid obesity interferes with his ability to walk, stand, kneel, stoop, lift and breathe. Those sound to me like major life activities and I can imagine how being that overweight could interfere with one or more of them.

To the extent that the employee can accomplish these major life activities with the use of pills, crutches, or other assistive measures, it doesn’t matter. So, yes, there is a strong argument that a morbidly obese employee has a disability.

There is another way that a morbidly-obese employee could be considered disabled under the ADA, and that is if the company regards the employee as disabled. (In its complaint, the EEOC also claimed that the company also regarded the employee as disabled). Even if the employee does not have a physical or mental impairment that substantially limits one or more major life activities is considered an actual disability, that employee is disabled under the ADA — because that’s how company considers the employee.

How does an employee prevail under the ADA?

There are a few ways, two of which are as follows:

1. A disabled employee will prevail if: (a) he can perform the essentials of the job — with or without a reasonable accommodation; (b) he requests a reasonable accommodation; (c) such an accommodation is available; and (d) the employer refuses to provide it. The discussion between employee and employer concerning a possible reasonable accommodation is called the “interactive dialogue,” and it has been discussed a few times on this blog. In its complaint, the EEOC alleges that the company refused to even engage in any discussion with the employee to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job.
2. If a disabled employee can perform the essentials of the job — with or without a reasonable accommodation — and the employee’s disability is a determinative factor in a company’s decision to fire, demote, suspend, or take some other type of adverse employment action, then the employee will also prevail. Here, the EEOC contends that the company fired the morbidly-obese worker because he was disabled, as evidence by its decision to replaced him with someone else.

Although the EEOC contends that the employer violated the ADA, right now, that’s all it is: a contention. We will see how this case shakes out.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.