Diversity & Inclusion

EEOC Makes Case for Obesity Discrimination

By Timothy M. Barber

The Equal Employment Opportunity Commission (EEOC) recently sued an employer in New Orleans, Louisiana, claiming it violated the Americans with Disabilities Act (ADA) by firing a woman because she was obese. In the past, an employee’s obesity didn’t constitute a “disability” within the meaning of the ADA. However, in light of recent amendments to the Act, the EEOC is taking the position that firing someone because she is obese is now unlawful discrimination.

EEOC Files Obesity Discrimination Suit

Recently, the EEOC filed suit on behalf of the estate of a severely obese employee, claiming her former employer discriminated against her because of her obesity. In the suit, the EEOC claims that Resources for Human Development (RHD) fired Lisa Harrison because she was obese.

The EEOC alleges that RHD “perceived Harrison as being substantially limited in a number of major life activities, including walking” and unable to effectively perform her job as a prevention/intervention specialist. According to the suit, Harrison was able to perform all of the essential functions her position required. And in a press release, the EEOC says the suit is “a classic case of disability bias, based on myths and stereotypes.” EEOC v. Resources for Human Development , No. 2:10-cv-03322 (E.D. L.A.).

ADA Traditionally Protects Three Categories of “Disabled” Employees

Title III of the ADA prohibits private employers from discriminating against any “individual with a disability.” There are three categories of individuals with disabilities traditionally covered by the ADA:

  1. individuals who have a physical or mental impairment that substantially limits one or more major life activities;
  2. individuals who have a record of a physical or mental impairment that substantially limited one or more major life activities; and
  3. individuals who are regarded as having such an impairment, whether or not they actually have the impairment.

Courts Previously Held Obesity Itself Not an Impairment

The leading case on obesity under the ADA is EEOC v. Watson Motor Lines , in which the court held that a morbidly obese truck driver didn’t have an “impairment” within the meaning of the ADA. The court held that an employer isn’t liable under the Act for discriminating against an employee who is “regarded as” having a perceived impairment unless the perceived condition itself constitutes an “impairment” under the ADA.

According to the court, to prove an employee has an “impairment” under the ADA, the EEOC must prove that he has a “physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of [various] body systems.” Under that standard, merely being overweight isn’t in and of itself an ADA impairment. The court held that an “abnormal” physical characteristic that some consider undesirable isn’t an “impairment” unless it is caused by a physiological disorder: “Non-physiological morbid obesity is not an ‘impairment’ under the ADA.”

Likewise, in Hill v. Verizon Maryland, Inc. , the court held that the employer didn’t discriminate against an overweight employee when it removed him from performing field technician work after his weight exceeded the company’s maximum weight limit. The court surveyed case law from around the country and stated that the general consensus is that obesity is an “impairment” under the ADA only when it is the result of an underlying physiological disorder.

Moreover, the court held that even if an individual’s obesity is the result of a physiological condition, the person isn’t “disabled” within the meaning of the ADA unless his obesity “substantially limits one of life’s major activities.” The court in the Hill case ruled that a condition doesn’t “substantially limit one of life’s major activities” merely because it causes some unwanted health effects or makes performing tasks more difficult. Rather, it must be sufficiently “severe” enough that a person is substantially limited in caring for himself or being able to work. Because the employee in this case testified that he could “walk, dress, cook, do laundry, care for himself hygienically, drive, run errands, and [was] able to work in a variety of jobs and capacities,” his obesity didn’t “substantially limit one of life’s major activities.”

Amendments to ADA Prompt New Lawsuit

On September 25, 2008, President George W. Bush signed the ADA Amendments Act of 2008, effective January 1, 2009. The Act made several significant changes to the definitions and standards under the ADA.

Among other things, the Act expanded the statutory definition of “major life activities” to include such activities as walking, reading, bending, and communicating. It also expanded the list of major bodily functions covered to include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

In addition, the Act changed the standard for “regarded as” liability so that an employer is now liable for discrimination under the ADA if it fails to hire or terminates a person “based on an impairment that is not transitory and minor” or a symptom of such an impairment. Under these changes, the EEOC doesn’t need to prove that the employer perceived the individual as “substantially limited in a major life activity.”

Audio Conference: Weight-Based Discrimination: How to Align Policies with New EEOC Enforcement

Bottom Line

The ADA Amendments Act of 2008 didn’t change the statutory definition of “disability” as an impairment that substantially limits one or more major life activities. According to the court in the Hill case, “nothing in the bill . . . suggests that Congress intended to allow anyone, with an impairment of any kind, to qualify as disabled.” Because the statutory changes didn’t alter the definition of “disability,” it’s arguable that the Watson decision and similar case holdings ― that obesity isn’t an “impairment” ― remain good law. On the other hand, because the list of “major bodily functions” involved in an “impairment” now includes the digestive, bowel, bladder, and endocrine systems and because the phrase “major life activities” now includes mundane activities such as walking and bending, it’s also arguable that obesity now constitutes a “disability” under the ADA.

Until courts resolve this dispute, you should be aware of the possibility that obesity may now be considered a disability under the ADA and that under the recent amendments to the Act, you may be liable for discriminating against an employee who is “regarded as” having an impairment ― regardless of whether you believe the impairment affects a major life activity. Finally, you should take heed that the EEOC is aggressively enforcing the ADA and taking full advantage of the new statutory definitions and standards.

Timothy M. Barber is an attorney with Axley Brynelson, LLP. He can be reached at (608) 283-6740 or tbarber@axley.com .

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