Can An Employer Really Discriminate Against an Obese Employee?

By Eric B. Meyer

There is no federal law that specifically prohibits obesity discrimination. But is the Americans with Disabilities Act broad enough to cover discrimination against the obese?

Well, if you read my blog regularly you know that a hyper-obese Homer Simpson is not disabled, but this 680-pound Texan may be. So, we need a tiebreaker! And, it just so happens that I have one.

An individual is considered to have an actual disability under the ADA if she has a physical or mental impairment that substantially limits one or more major life activities. Last week, a federal court in Louisiana recognized that a morbidly-obese plaintiff may have a physical impairment which, if it substantially limits one or more major life activities, would bring that plaintiff within the scope of the ADA (the pre-ADAAA version).

Morbidly-obesity is an ADA “impairment”

To arrive at the conclusion, that court first drew from the EEOC Compliance Guidelines, which note that severe obesity is “clearly an impairment”. (Note: the EEOC Compliance Guidelines will be updated soon to reflect major changes made to the definition of “disability” that went into effect on January 1, 2009).

Next, the court recognized that the plaintiff, a 527-pound drug counselor, had an impairment that substantially limited one or more major life activities. Or, at the very least, her former employer regarded her as disabled (Click the link and scroll down to No. 25):

Either way, Harrison is a qualified individual under the auspices of the ADA. At all relevant times, she was severely obese, which is an impairment under the ADA. Additionally, she was actually disabled as a result of her severe obesity because of the resulting diabetes and heart problems. (Rec. Doc. No. 26-7). Michele Vick, Harrison’s supervisor at Family House, noted that her “weight was clearly having an adverse impact on her ability to do her job.” In her EEOC Intake Questionnaire, Harrison specifically stated that “Michele Vick terminated me for the reason of weight. She stated our funders Jefferson Parish said I had limited mobility.”

Being mindful when potential ADA issues arise

This was the same Harrison who, before getting fired, had received superior scores on her performance reviews. Consequently, the Court determined that the morbidly-obese Harrison (she, in fact, died, and the EEOC is pursuing an ADA claim on behalf of her estate) may have a tenable cause of action.

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As noted above, recent changes to the ADA have made it more employee-friendly. Whether it’s morbid obesity, or another other potential disability, it is illegal to take action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment that the company believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor.

It is also against the law to deny a reasonable accommodation to a disabled individual. So, when workplace issues potentially invoking the ADA crop up, strongly consider contacting employer-law counsel for guidance.

Attorney Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

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

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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