by Gary Jiles
Q: Can an employee be fired for being so obese that he can’t do his job? In other words, is obesity a disability protected by law?
A: The employee must be qualified to do his job or he faces termination. With a few exceptions, the latest cases indicate that obesity is usually not considered a disability unless the employee can show it’s caused by a physiological condition beyond his control.
Employee must be able to perform essential functions
The Americans with Disabilities Act (ADA) requires that employees with a disability be able to perform the essential functions of their jobs with or without accommodations. There is little explanation for what the ADA means by “essential functions,” but they do not include the marginal functions of the position. For example, a correctional officer who cannot meet the physical demands of his job, such as ensuring safety, standing for long periods of time, and responding to emergencies quickly, wouldn’t be protected by the ADA if those are the essential functions of his job.
But if the employee can perform those essential functions, whether an employer may fire him is not so clear. The law indicates that simply being overweight or obese is generally not a disability. The ADA definition of “disability” is “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.”
The ADA also points out that a disability can be a record of having a mental or physical impairment or being regarded as having one. In other words, the ADA doesn’t expressly include or exclude obesity. Further, the U.S. Department of Labor (DOL) seems to suggest that obesity is supposed to be considered a disabling impairment only in extremely rare circumstances. Thus, courts have usually ruled it out as a disability.
A few courts have nevertheless ruled that morbid obesity is a physical impairment under the ADA. Most courts, including the Eighth Circuit, will start with the general rule that an employee must prove he is disabled by showing that (1) he has a disability as defined under the ADA, (2) he suffers from a history of such a disability, or (3) he is perceived by his employer as having such a disability.
When considering the first two options, most courts, including the Eighth Circuit, have indicated that being morbidly obese isn’t enough; the obesity must have an abnormal physiological cause. And even if there is a physiological cause, some courts might require that the employee be substantially limited in one or more of his major life activities.
As for the third option, even if his major life activities aren’t substantially limited, the employee may be able to claim a disability if the employer treats him as if he has a physical impairment that substantially limits a major life activity. For that reason, some courts might refuse to dismiss a disability claim when the employer has given the employee a hard time about his weight or has made extremely derogatory comments about it. This exception is meant to prevent discrimination based on mere speculation and unfounded fears about disabilities.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act
Employers should be aware that even though obesity is generally not considered a disability, courts are increasingly finding that it might be a disability. Further, just because most courts haven’t yet suggested that obesity doesn’t reach the level of a disability doesn’t mean it may never be a disability in the future. One thing is sure — the only time it’s safe to terminate an employee solely because he’s obese is if he is unable to perform the essential functions of his job.