The concept of obesity and morbid obesity as a disability has been a hot issue f

Question

The concept of obesity and morbid obesity as a disability has been a hot issue for several years. The ADA Amendments Act of 2008 (ADAAA) altered the scope of the definition of disability (look at the EEOC links in the HR Web Sites in the Student Resources module). After approximately two years of input from employers and other interested parties, the EEOC published its final rule regarding the implementation of the ADAAA. Joe, who is about 100 pounds over his ideal body weight, interviewed for a job as a sales counselor for a weight loss center. The center emphasizes one-on-one coaching and healthy lifestyle maintenance. Joe was told by the interviewer that he was the “most qualified” applicant but that the regional manager had concerns about his weight. Joe was later informed that he would not be hired now because the company was “image conscious” and his weight would “send the wrong message.” He was told to re-apply for employment after losing 70 pounds.

Define morbid obesity and discuss

(1) what claim Joe may raise under the ADA,

(2) what the court should decide, and

(3) what some future implications would be for organizations affected by the ADAAA and that employ morbidly obese people

Explanation / Answer

When Congress passed the ADAAmendments Act (ADAAA) in 2008, many said it would open the floodgates and everything could be considered a disability. That hasn’t proven entirely true but the ADAAA certainly expanded the scope of disabilities covered under the Americans with Disabilities Act and to an extent, also expanded the scope of the Texas Labor Code’s disability protections. One issue that has come up more than once is whether obesity qualifies as a disability under the ADA or ADAAA. The federal courts seem to agree with the Equal Employment Opportunity Commission (EEOC) that obesity is not a disability but severe or morbid obesity sure is.

THE ADA DEFINITION OF DISABILITY AND OBESITY

Under the ADA and the subsequent amendments in 2008, a disability is a physical or mental impairment that substantially limits one or more major life activity. The ADA and ADAAA (not to be confused with the AAA motor club or AARP senior citizens advocate) exclude certain conditions specifically in the text (such as bisexually) but obesity is not specifically excluded. “Regular” obesity is not a disability because it is not considered to substantially limit one or more major life activity. Severe or morbid obesity is considered a disability by the EEOC and the federal courts that have ruled on the issue following the passage of the ADAAA. Morbid obesity substantially limits the person’s ability to walk, stand, kneel, stoop and breathe. These are all “major life activities” under the ADA and ADAAA.

According to a recent interview with the EEOC Commissioner, severe obesity that is 100% more than normal body weight is considered an impairment although he declined to draw specific lines at exactly where the EEOC will consider obesity to reach severity to become an impairment under the ADA. Two years ago the EEOC sued a Texas employer who fired a 680-pound employee because he was morbidly obese. It’s pretty clear that is a lot of weight on the human frame and it would be difficult to breathe, walk and so forth. However, “more to love” at an extra 20-30 pounds probably isn’t going to qualify as a disease unless the weight gain has to do with an underlying physical condition (such as a thyroid condition that causes weight gain) and the employee is discriminated against on the basis of the underlying condition or the weight gain as a symptom of the underlying condition. However, in that situation the employee will still have to prove he or she was regarded as substantially limited in one or more major life activity due to the condition or weight or prove the underlying condition actually does substantially limit one or more major life activity.

The ADAAA added a “regarded as” disabled component to disability discrimination law, which may have interesting consequences for obesity-related disability discrimination suits. Under the “regarded as” definition, an employee is protected from discrimination on the basis of a belief that the employee is disabled, regardless of whether the employee is actually disabled or not. An employee who might not be able to prove his or her weight substantially limits one or more major life activity could still prevail under the “regarded as” component if the employer believed the employee’s weight was a substantial limitation. That could open the door to obesity-related disability discrimination suits at a weight far below 100% more than normal body weight. It’s unlikely an employer is going to regard an employee as morbidly obese at a few pounds overweight but maybe 40-50% over normal body weight could be different, especially if the employee has a small body frame.

Q.1)Joe can claim under "regarded as" under ADA

Q.3) For employers, it’s long past time to recognize that obesity can present liability under the ADA. Employers do not have to rubber stamp-approve all obesity-related accommodation requests but nor can employers automatically feed those requests into the shredder. They need to be considered appropriately like any other ADA accommodation request. Additionally, employers need to be mindful of liability for disability-based harassment of employees and that includes severely obese employees. Stereotypes, jokes, derogatory comments and other weight-related content can form the basis for an obesity-related harassment or hostile work environment claim.

For employees with severe obesity and physiological conditions that cause above-normal weight, be aware of your employment situation. If you require an accommodation to your work conditions or work responsibilities then you need to make an appropriate accommodation request. Be mindful of whether you are being discriminated against in work assignments, promotions, etc. on the basis of your weight. Also keep in mind that if you are regularly being subjected to comments about your weight that you should follow your employer’s anti-harassment policy to complain to the appropriate management or HR personnel to protect possible claims of harassment. If you believe you have already suffered discrimination on the basis of your weight, contact my firm to discuss your case.

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