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A Growing Concern for Employers: Obesity as a Disability Under Federal and State Laws

October 22, 2012

Overview

There are two facts germane to this subject which are hard to quarrel with. One, there has been an alarming increase in obesity rates in recent years amongst both adults and children. Second, individuals who are obese are often the subject of discrimination both in the employment setting and in the context of personal interactions. As a result of these societal trends, we are apt to see more cases in the future in which employees attempt to use the Americans with Disabilities Act ("ADA") and similar state disability discrimination laws as a means to seek reasonable accommodation and to obtain protection from adverse employment actions based on obesity.

In the last few months, there have been two important developments in this area. On July 24, 2012, the Equal Employment Opportunity Commission ("EEOC") issued a press release which can be found on its website in which it announced that it had entered into a consent decree settling a lawsuit against a company called BAE Systems. In its lawsuit, the EEOC alleged that the company fired an employee because of his disability, morbid obesity, and because it regarded him as disabled. The EEOC further claimed that (1) the employee was qualified to perform the essential functions of his job at the time of his discharge; (2) had received good performance ratings; and (3) that his termination from employment was based on misperceptions and prejudice. The consent decree called for the company to pay the employee $55,000 and to train its managers and human resource professionals regarding disability discrimination law and reasonable accommodation. In its press release publicizing its settlement as a means of informing the public of the agency's requirements, the EEOC made the blanket statement that "the law protects morbidly obese employees and applicants from being subjected to discrimination because of their disability."

The EEOC settlement and press release are notable because nowhere is there any mention of the employee suffering from a physiological impairment which caused his obesity. Prior to the 2008 amendments to the ADA, it was generally accepted that obesity was not recognized as a disability. The EEOC guidelines at the time stated that, absent "rare circumstances," obesity was not a disability. Most courts held that, unless the employee could prove that his or her obesity was caused by some underlying physiological condition such as diabetes or a hormonal imbalance, obesity did not qualify as a disability and could not form the basis of an ADA claim. However, since the significant broadening of the ADA which took place as a result of the 2008 amendments, many are questioning the notion that such a requirement continues to exist. The EEOC settlement and press release certainly supports that view because the agency has concluded that obesity, at least to the extent that it can be characterized as "morbid obesity," constitutes a condition warranting protection under the ADA without any previously required inquiry into its physiological cause.

The EEOC's viewpoint is apparently shared by the Montana Supreme Court, which decided, on July 6, 2012, the case of BNSF Railway Co. v. Feit, 281 P.3d 225 (Mont. 2012). Although this case was decided under Montana's disability discrimination act, which is very similar to the ADA and contains an identical definition of the term "disability," the court's opinion relies heavily on an interpretation of federal law. In the BNSF Railway case, the employer refused to hire an applicant as a train conductor because of what it concluded were significant health and safety risks associated with his extreme obesity. Ruling in favor of the applicant, the Montana Supreme Court first noted that the ADA differentiated between conditions that qualify as physical impairments because they involve a physiological disorder and conditions that are simply physical characteristics such as "eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal range' and are not the result of a physiological disorder." Id. at 229 (quoting 29 C.F.R. § 1630(2)(h) (2011)). The Court then reviewed the EEOC's compliance manual, which states that while "being overweight, in and of itself" is generally not an impairment, "severe obesity, which has been defined as body weight more than 100% over the norm * * * is clearly an impairment." Id. at 230 (quoting EEOC Compliance Manual § 902.2(c)(5)(ii)). Relying on the EEOC regulations, the EEOC Compliance Manual and the fact that Congress clearly intended by the 2008 amendments to broaden the scope of what constituted a disability, the court concluded that obesity qualified as a physical impairment even if it was not caused by any physiological condition so long as the individual's weight was outside normal range and affected one or more body systems. The court in BNSF Railway also noted that the 2008 amendments also made it easier to successfully prosecute a claim that an obese individual was "regarded by" the employer as suffering from an impairment because the amendments removed any requirement that the perceived impairment limit or be perceived to limit a major life activity.

The view of the EEOC and the Montana Supreme Court, while not universally adopted, has been shared by several federal trial courts and substantially increases the chance that a severely obese individual will qualify for protection under the ADA or a state disability law modeled after the ADA. While the last word has not been heard about this issue and employers may eventually succeed in convincing appellate courts that obesity must be caused by physiological factors to qualify as a physical impairment, these developments must be taken seriously. To avoid potential liability, employers will need to guard against conscious or unconscious bias against job applicants who are severely overweight. Additionally, employers will need to carefully consider whether severely obese employees who are having problems performing their job need reasonable accommodation. Employers will also need to train their employees to guard against prejudices and misperceptions about obese employees; for example, feelings or perceptions that the employees are to blame for their obesity, lack willpower or moral fiber, or are unable to engage in any strenuous activity. Employers will also need to be cautious about "regarded as" claims involving obese employees.

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