Articles Posted in Discrimination and Unlawful Harassment

Last week, I talked about reasonable accommodations under the Americans with Disabilities Act, and the importance of having an open-minded, respectful conversation with a disabled employee who requests an accommodation to perform the essential functions of the job. Ultimately, as I’ve discussed before, the employer (and not the employee) may insist upon a particular accommodation as will enable the employee to perform the essential functions of his job.

But is that always the best move?

Consider this recent case, in which a diabetic service technician requested that his employer provide him with an air conditioned vehicle to keep his insulin cold. Providing an air conditioned vehicle seems pretty reasonable to me. Instead, however, the company had a policy, which allowed all employees “take breaks at restaurants or other establishments to cool off on hot days.” Thus, the company claimed that this policy would be a accommodation and; therefore, the employee should not have refused it.

Rather, it’s just being — oh what’s that word — ‘human.’

Like in this case, in which a supervisor with breast cancer was disciplined — yes, folks, you can reprimand an employee with an ADA “disability” or FMLA “serious health condition” — for allegedly calling other employees names such as “idiot,” “moron,” and “dumbass;” and also striking a few of them on the head for good measure. The supervisor-plaintiff was then demoted and given a pay cut commensurate with the other deputy clerks at her position. When told of the demotion and pay cut, her boss also mentioned that “she should probably focus on her health rather than worry about the stress of supervising people.”

My heavens! I’ve caught the vapors. A boss who expresses concern for the welfare of his employees. Sounds like a terrible place to work!

About two years ago, 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. The EEOC alleged that the employee’s immense weight interfered with his ability to walk, stand, kneel, stoop, lift and breathe. Consequently, he was disabled, as defined under the ADA.

Since then, at least one court has recognized that morbid obesity may be a disability, while another court held that, under state law, morbid obesity is not a disability. It was right around this time that the American Medical Association adopted a new policy that officially labels obesity — not morbid obesity, but obesity — as a disease.

So how does employee obesity impact employers under the ADA?