Another court has ‘weighed in’ on whether obesity is a disability under the Americans with Disabilities Act.
Hey, who just took revoked my license to blog?
A few months ago, back when I still had a blogger license, I wrote here about obesity as a disability under the New Jersey Law Against Discrimination. In this decision, New Jersey’s Appellate Division concluded that being overweight, alone, is not a disability. Instead, a plaintiff alleging that his obesity is a disability must establish an underlying medical condition that caused the weight gain.
Fast forward to June 12, and the Seventh Circuit Court of Appeals in this opinion reached the same conclusion; namely, obesity is an actual disability under the ADA only if the obesity results from an underlying physiological disorder or condition. Plus, the court noted that, even under the interpretive guidance of the U.S. Equal Employment Opportunity Commission, “an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder.”
So, what should an employer do when presented with a situation in which an extremely overweight employee claims to have a disability and requests accommodation?
- You’re not a doctor. So, don’t act like one. Obesity may not be a disability, but it could be a symptom of another limitation. Ask the employee to provide information from his/her doctor to establish that the employee has an underlying disability. Establishing an actual disability is a low bar.
- Engage in a good-faith, interactive dialogue. Start by asking, “How can we help you?” Then, you discuss with the employee what options may exist to accommodate the employee such that he or she can perform his job without creating an undue hardship on the employer. Here is a resource that may help.
- Remember that perceived disabilities are protected too. Even if the employee’s obesity is not a disability, if an employer does regard that employee as having a disability and takes adverse action on that basis, then the employer can be liable for disability discrimination. Although there is no duty to accommodate someone whom you perceive as having a disability.