Can an employer discriminate against an obese employee?

There is no federal law that specifically prohibits obesity discrimination. But is the Americans with Disabilities Act broad enough to cover discrimination against the obese? Well, if you read my blog regularly — Hi Dad! — you know that a hyper-obese Homer Simpson is not disabled, but this 680-pound Texas may be. So, we need a tiebreaker! And, it just so happens that I have one, after the jump…

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Morbid obesity can be a disability under the ADA.

An individual is considered to have an actual disability under the ADA if she has a physical or mental impairment that substantially limits one or more major life activities. Last week, a federal court in Louisiana recognized that a morbidly-obese plaintiff may have a physical impairment which, if it substantially limits one or more major life activities, would bring that plaintiff within the scope of the ADA (the pre-ADAAA version).

To arrive at the conclusion, that court first drew from the EEOC Compliance Guidelines, which note that severe obesity is “clearly an impairment”. (Note: the EEOC Compliance Guidelines will be updated soon to reflect major changes made to the definition of “disability” that went into effect on January 1, 2009). Next, the court recognized that the plaintiff, a 527-pound drug counselor, had an impairment that substantially limited one or more major life activities. Or, at the very least, her former employer regarded her as disabled (Click the link and scroll down to No. 25):

Either way, Harrison is a qualified individual under the auspices of the ADA. At all relevant times, she was severely obese, which is an impairment under the ADA. Additionally, she was actually disabled as a result of her severe obesity because of the resulting diabetes and heart problems. (Rec. Doc. No. 26-7). Michele Vick, Harrison’s supervisor at Family House, noted that her “weight was clearly having an adverse impact on her ability to do her job.” In her EEOC Intake Questionnaire, Harrison specifically stated that “Michele Vick terminated me for the reason of weight. She stated our funders Jefferson Parish said I had limited mobility.”

This was the same Harrison who, before getting fired, had received superior scores on her performance reviews. Consequently, the Court determined that the morbidly-obese Harrison (she, in fact, died, and the EEOC is pursuing an ADA claim on behalf of her estate) may have a tenable cause of action.

Employers must be mindful when potential ADA issues arise.

As noted above, recent changes to the ADA have made it more employee-friendly. Whether it’s morbid obesity, or another other potential disability, it is illegal to take action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment that the company believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. It is also against the law to deny a reasonable accommodation to a disabled individual. So, when workplace issues potentially invoking the ADA crop up, strongly consider contacting employer-law counsel for guidance.

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