"May it please the Court. Being overweight is just like having a neon-green mohawk."

February 21, 2014
By Eric B. Meyer on February 21, 2014 7:00 AM | | Comments

greenmohawk.jpgThat's how I start my next oral argument when defending a claim made under the Americans with Disabilities that one of my employer clients regarded an overweight plaintiff as disabled.

So, who wants some of what I'm drinking today?

Hey, it's peppermint tea, jerk! And I'm not pulling this blog lede out of my butt. Well, not completely, I'm not.

Check out this recent federal court decision in which a plaintiff alleged that her former employer violated the ADA by firing her because it regarded her as morbidly obese.

Now, for those of you who are a little rusty on the "regarded as" ADA claims...

*** pulls collar ***

The ADA covers those individuals whom an employer regards as having a disability, even if they don't actually have one. A plaintiff establishes a "regarded-as" claim by showing "that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

(More on "regarded as" here)

So, getting back to this recent case, in the context of a "regarded as" ADA claim, the judge likened being overweight to having a neon green mohawk, neither of which qualifies as a disability:

"Plaintiff's argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an 'undesirable' physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a 'physical or mental impairment' within any rational definition of the phrase. At most, plaintiff's evidence is that Merrell perceived that Gentiva customers were less likely to purchase hospice services from an overweight sales representative (just as they would be less likely to purchase such services from a sales representative sporting a green mohawk). Neither the hairstyle nor the weight is an actual or perceived impairment in that scenario. Yet that is all plaintiff offers on summary judgment."

Now, of course, there may be situations in which morbid obesity could be an actual disability, where it affects a major life activity. Similarly, an employer could perceive an overweight employee to be disabled. 

Just don't let that perception motivate you to fire the employee. 

Then, you'll have more problems than the dude in the neon green mohawk.

Image Credit: Alechemy Overload on Flickr

(h/t Disability, Leave & Health Management Blog)