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Obesity: Big ADA Problem for Employers

by Jennifer L. Anderson

A federal court in New Orleans recently paved the way for the Equal Employment Opportunity Commission (EEOC) to move forward with an Americans with Disabilities Act (ADA) lawsuit on behalf of a severely obese employee. Whether obesity is a disability under the ADA and what an obese employee must prove to win her case are issues that have generated controversy and resulted in conflicting court decisions over the years. The EEOC’s case is governed by the ADA, under which the definition of “disability” is interpreted more narrowly than it is under the current version of the law, the ADA Amendments Act (ADAAA). Nevertheless, the recent ruling out of New Orleans adopts an interpretation that makes it easier for an obese employee to pursue an ADA claim under either standard.

What this means to you is that the definition of “disability” under the ADAAA and the collective waistline of the American workforce may not be the only things that are expanding. Under the court’s analysis in this case, employers may also see an increase in the number of EEOC charges and lawsuits filed by obese employees, regardless of whether the old or new law applies.

Mastering HR Report: Americans with Disabilities Act

Employee’s firing difficult to swallow
The EEOC filed its lawsuit on behalf of Lisa Harrison, who was obese. The agency alleged that her former employer discriminated against her because of a disability protected by the ADA. Harrison had worked for a long-term residential treatment facility for chemically dependent women and their children. Her job included oversight of a day-care program for the children of women staying at the facility. She was 5’2″ and weighed more than 400 pounds when she was hired. During her employment, she received an evaluation rating her performance as “excellent” in seven of 12 areas, including quality of work. When her employment was terminated, she weighed more than 500 pounds.

After her discharge, Harrison filed a charge with the EEOC. She denied that she had an actual disability. Instead, she claimed her employer regarded her as disabled based on her obesity and fired her based on that perception in violation of the ADA. Harrison passed away soon after filing her charge. The official cause of death was “morbid obesity.” The EEOC filed a lawsuit on behalf of Harrison’s estate, adding to her original allegations and claiming that her severe obesity constituted a physical impairment under the ADA.

Harrison was discharged before the ADAAA took effect, so the narrower definition of “disability” that existed under the ADA applied to this case. The employer asked the court to dismiss the EEOC’s lawsuit.

Conflicting court opinions weighed
The court noted that there is no federal law prohibiting obesity discrimination, and the ADA doesn’t specifically address obesity. As a result, obese employees have pursued claims under the ADA with mixed results. Courts have disagreed about whether an employee must establish that her obesity (1) is the result of an underlying physiological disorder and (2) substantially limits a major life activity. The court reviewed various courts’ conflicting opinions in addressing the employer’s dismissal request.

The threshold question was whether Harrison had a disability. The court explained that to succeed in proving she had a disability, the EEOC had to show that she (1) had a physical or mental impairment that substantially limited one or more major life activities, (2) had a record of such an impairment, or (3) was regarded as having such an impairment. If the agency could do that, then it would be required to show that Harrison was qualified to perform her job and suffered an adverse employment decision because of her “actual, recorded, or perceived” disability.

Employer bites off more than it can chew
The employer argued that EEOC regulations specifically exclude obesity from the definition of “impairment,” referring to a regulation that excludes physical characteristics such as eye color, hair color, left- handedness, height, or weight that is within a “normal range” and “is not the result of a physiological disorder.”

However, the court observed that the EEOC’s interpretive guidance states that being overweight, in and of itself, generally is not an impairment but that “severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” The EEOC’s interpretive guidance also states that “a person with obesity may have an underlying or resultant physiological disorder” that is an impairment.

After reviewing the EEOC’s guidance and other court decisions addressing the application of the ADA to obesity, the court concluded that “severe obesity is a disability under the ADA and does not require proof of a physiological basis for it.” Rather, the court explained that a physiological cause is required only when an employee’s weight is within normal limits. The court found its conclusion consistent with other EEOC guidance indicating that the cause or voluntariness of a condition has no effect on whether it’s considered an impairment. Under that standard, the court easily concluded that Harrison’s severe obesity, either as it actually existed or as the employer perceived it, was a substantially limiting impairment under the ADA.

Next, the court turned to whether the employer regarded Harrison as disabled. Harrison’s supervisor noted that her “weight was clearly having an adverse impact on her ability to do her job.” Additionally, Harrison claimed that her supervisor fired her because of her weight, indicating that a funding agency thought she had limited mobility. The court found sufficient evidence that (1) the employer regarded Harrison as disabled and (2) a genuine question of fact existed about whether she was fired because of her weight. Thus, the court denied the employer’s request to dismiss the case and is allowing the EEOC to proceed.

ADA Complete Compliance

Have your cake and eat it, too?
This ruling is a firm reminder that an employee doesn’t have to have an actual disability to be protected by the ADA. Even when an employee isn’t limited in her ability to perform any major life activities, it’s possible for an employer to run afoul of the ADA if it regards her as being disabled and discriminates against her on the basis of its erroneous perception. That happens most often when you act based on assumptions, prejudices, or stereotypes toward an employee who appears to be physically different from others — for example, because of a limp, a speech impediment, or obesity. You may have good intentions in assuming that an employee is unable to perform a particular task or job, but those good intentions can create legal risk under the ADA.

At first glance, the “regarded as” disabled theory may appear as allowing an employee to have her cake and eat it, too. However, the reason the ADA prohibits discrimination based on perceived disabilities is to discourage myths and misperceptions about individuals who may appear to have an impairment but are actually capable of performing their jobs. Therefore, you should focus on the functions of a job and the employee’s ability to perform those functions when making employment decisions. Avoid making assumptions or giving into prejudices or stereotypes about employees who are overweight or who appear to have a physical or mental impairment.

Unless an employee tells you she has an impairment and needs an accommodation, ignore any questions or doubts based on what may seem to be an impairment, and give her a shot. She may surprise you and turn out to be the best employee you’ve ever had. If not, then you can counsel, discipline, and even discharge her as long as you focus strictly on the job and her performance and treat her the same way you would treat anyone else under the same circumstances.