Is Obesity a Disability? Jury’s Still Out, but It’s a Serious Matter

Even though there’s no definitive rule on whether obesity is a disability under the amended, more employee-friendly Americans with Disabilities Act (ADA), you should be careful about how you treat overweight and obese employees. One in every three Americans age 20 and up was obese between 2007 and 2008, and about the same percentage was overweight, according to the Centers for Disease Control and Prevention. One state, Nevada, was considering legislation this year to outlaw discrimination based on physical characteristics, including weight, and survey research published in the journal Obesity and reported in the Orlando Sentinel indicated support for laws against discrimination based on weight.

The U.S. district court in New Orleans has been asked to rule on a recent lawsuit by the Equal Employment Opportunity Commission claiming a woman was illegally fired because of obesity in violation of the ADA. The employer has denied liability, and a trial is set for March 2012. The new ADA doesn’t explicitly say obesity is a disability, but it relaxes the definition for an impairment that substantially affects a major life activity, the cornerstone of ADA protection. That makes it easier for an employee to establish she is disabled and entitled to the Act’s protections ― a reasonable accommodation to perform the essential functions of the job and protection from adverse workplace decisions based on bias.

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

Get By with a Little Help

The courts are slowly reaching decisions based on the new ADA, but what’s an employer to do in the meantime? Here are some quick guidelines:

• First, remember that the purpose behind amending the ADA was to get employers to stop arguing about whether employees were truly disabled and start helping them do their jobs. In many cases, that will mean spending more time working with an employee to reach a reasonable accommodation so he can perform the essential functions of the job.

• Second, the employee must let you know he has an impairment unless it is obvious. While it may be obvious that someone has a weight problem, it may not be obvious that it’s an impairment, so don’t jump to conclusions or assume anything. For example, if an obviously overweight person has a job performance problem, in the absence of anything more to guide your actions, deal with the performance issue as you would with any other employee. Document your actions in the usual way.

• Third, once the same employee says his weight is making it hard to do his job, then you can talk with him about the situation. Ask if there’s anything you can do to help him do the job. Talking about helping him get the job done, rather than about accommodating a disability, indicates you don’t regard him as disabled but rather are trying to help. (Under the new ADA, however, it’s easy for the employee to show a disability that entitles him to a reasonable accommodation, so the Act may very well apply anyway.) The help you give must relate to the job and the person’s issues that make it hard to do the job. You don’t have to give the employee whatever he wants.

When you have talked with an employee about helping him get the job done, you have tried some approaches, and none has worked, you have fulfilled your duty under the ADA.

Don’t Assume; Do Be Professional

There are a few general “don’ts” to keep in mind. Don’t make assumptions about what the person with a weight problem can or can’t do in performing her job. Assuming someone can’t do a job because of weight can lead to an ADA claim based on being regarded as having a disability.

Don’t get drawn into discussions with other employees about why you don’t give them the same “breaks” you may have given someone with a weight problem. That’s between you and the person getting the help; it’s not the others’ concern.

Whatever happens, don’t criticize an employee or treat her unkindly because of her weight. Don’t bully her, make fun of her, make comments behind her back, or create a hostile environment. That behavior makes people angry ― angry enough to sue and hope the judge throws the book at you. Your behavior toward your employees is fully within your control, and the days of fat jokes are over.

ADA Accommodation Compliance: Mastering the Interactive Process