Naturally, most employers strive to take every legal precaution they can and to put forth their best effort to remain in compliance with all employment laws. Compliance with the Americans with Disabilities Act (ADA) is no exception.
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The ADA Amendments Act (ADAAA) went into effect in 2009 and effectively made it clearer what constitutes a disability, thus eliminating many arguments over what should and should not be covered by the ADA. But there are still questions that remain. One such question is: When does obesity become a disability? The fact of being overweight is not in and of itself a disabling condition, but there are many facets to this question. Let’s take a look at some of the considerations.
Obesity and Its Relationship to Disability Discrimination
Here are some of the considerations for employers to bear in mind when it comes to obesity and disability.
- Underlying conditions are a factor to consider. There are several underlying medical conditions that may cause weight gain and lead to obesity; in these cases, obesity would be a symptom. The underlying condition may very well be a disability in its own right if it meets the criteria or if an individual is regarded as disabled as a result.
- The severity of the obesity can make a difference. The argument has been made that obesity should be considered a disability under the ADA/ADAAA because it meets the requirement of “substantially limiting a major life activity,” such as walking, bending, standing, breathing, or digesting food. But thus far, the courts have not routinely concluded that obesity alone should be a de facto disability. They have, however, tended to agree that severe or morbid obesity would qualify for the very reasons described above. That said, how is an employer to know when an obese individual should or should not be considered disabled? It’s not a simple answer. This situation can be further complicated when an employee has been subjected to weight-based discrimination.
- The “regarded-as” component of the ADA/ADAAA often comes into play. There are three ways that someone will be considered disabled (and thus protected from discrimination) within the regulations:
- When he or she in fact has a condition that substantially limits a major life activity,
- When there is a record of such a disability, or
- When an individual has “been subjected to an action prohibited under the statute (e.g., termination; failure to hire) because of an actual or perceived impairment.”[i]
This third prong is often referred to as the individual being “regarded as” disabled. It means that if someone is discriminated against because of a perceived disability—even if one does not exist—he or she is still protected by the ADA as long as this perceived disability is not transitory and minor. (This person is not, however, entitled to reasonable accommodations unless an actual disability exists.) This “regarded as” aspect is quite relevant for obesity, as it means that an employer who assumes a person is disabled due to obesity and yet takes a discriminatory action would still be liable.
- Obesity may give rise to other conditions, which would be covered on their own. While obesity itself may not qualify as a disability by default, there are other related conditions that may come about either in part or completely due to an individual’s weight. These conditions may qualify as disabilities in many cases.
- An employer will still have a duty to protect from harassment. Even if an individual is not technically disabled under the law, if the individual is being subjected to harassment or a hostile working environment, the employer still has an obligation to take appropriate steps to stop this from occurring.
At the end of the day, what this means for employers is that the situation is not black and white. In many cases, an obese individual may indeed have a disability—but it may or may not be the obesity itself that qualifies. Review each case on its own merit. Consult with qualified legal counsel with questions.
[i] https://www.dol.gov/ofccp/regs/compliance/faqs/ADAfaqs.htm#Q6