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Obesity is the Next Big Thing in Discrimination Claims

Lerch Early Legal Update

Employers long have been prohibited from basing employment decisions on employees’ membership in a protected class, such as race, sex, age or disability. In addition, some may be familiar with the additional protected classes created by various state and local laws such as sexual orientation, marital status and family responsibilities. However, recent court decisions and the Equal Employment Opportunity Commission (“EEOC”) have demonstrated that obesity also may be protected as a disability under federal and corresponding state and local laws.

In 2008, Congress amended the Americans with Disabilities Act. In issuing the ADAAA, Congress made clear that it intended to broaden the definition of what constitutes a disability under the law. Seizing on this, plaintiffs and their lawyers are seeking to have obesity included in this definition, and some courts are agreeing with them.

Recently, the Supreme Court of Montana was asked to interpret the Montana state version of the ADAAA when Eric Feit brought suit against the Burlington Northern Santa Fe Railway Company (“BNSF”) for illegally discriminating against him because of the perceived disability of obesity. BNSF revoked its offer of employment to Feit because of the “significant health and safety risks associated with [Feit’s] extreme obesity.” BNSF told him that he would not be considered for a job unless he lost 10% of his body weight. In analyzing whether BNSF’s actions toward Feit constituted disability discrimination under the Montana law, the Montana Supreme Court held that “obesity … may constitute a ‘physical or mental impairment’ within the meaning of [the Montana law] if the individual’s weight is outside ‘normal range’ and affects ‘one or more body systems…’”

The EEOC also recently brought suit on behalf of employees claiming obesity discrimination under the ADAAA. In one suit, the employee alleged that his employer, BAE Systems, both failed to provide him with a reasonable accommodation and illegally terminated him based on his morbid obesity. The employee in this case asked for a seatbelt extender that would allow him to wear a seatbelt while driving a forklift and was terminated two weeks later, allegedly because he could no longer perform his job due to his body size. In EEOC v. Resources for Human Development, the EEOC brought suit against another employer for the termination of a child-care services manager because of her severe obesity. In deciding the summary judgment motion brought by the employer in this case, the federal court held that “[s]evere obesity is a disability under the ADA and does not require proof of a physiological basis…”

Given the EEOC’s position and those adopted by these courts, it is advisable for employers to treat at least severely obese employees as protected by the ADAAA. As a result, where an obese employee requests an accommodation for his or her work environment due to large body size, employers should review the request the same way that they review any other disability accommodation request. In addition, when making hiring, firing and transfer decisions employers should consider the fact that taking into account an employee’s obese status could be grounds for disability discrimination. Given the continuing increase of obesity in the United States, employers should recognize this growing class of potential claimants and accommodate the overweight as they do the disabled.

Julie Reddig is an employment attorney at Lerch, Early & Brewer  in Bethesda, Maryland who defends management against discrimination claims made by current and former employees. For more information on obesity as a disability in the workplace, contact Julie at (301) 961-6099 or jareddig@lerchearly.com.

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