In June, the American Medical Association (AMA) adopted a policy recognizing “obesity” as a “disease” requiring a range of medical intervention. With “obesity” now recognized as a “disease” by the AMA, obese employees may be afforded greater protection under the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008 (ADA). Consequently, obesity-related employee claims may dramatically increase, thereby triggering increased claims for insurance under employment practices liability coverage.
There is no federal law that expressly prohibits obesity discrimination, but plaintiff employees have brought obesity-related discrimination claims under the ADA with varying degrees of success. The ADA generally prohibits discrimination against employees with physical or mental disabilities. Additionally, the ADA requires employers to make “reasonable accommodations” for their disabled employees to perform their duties as long as such an accommodation does not impose an undue hardship on the employer. Federal courts have waivered on whether obesity is a recognized disability under the ADA. Several courts have held that obesity is not a disability under the ADA. Other courts have held that, to constitute an ADA impairment, an employee’s obesity must be the result of a physiological condition. A few courts have held that severe obesity is a disability under the ADA even without proof of a physiological basis.
Although the AMA’s new policy is not legally binding, it may prompt more courts to recognize “obesity” as a disability under the ADA. According to the Center for Disease Control and Prevention (CDC), approximately one-third of American adults are “obese.” Consequently, the number of ADA claims brought by employees against their employers for obesity-related discrimination may increase dramatically. Employers facing liability for these claims may seek insurance coverage under an employment practices liability (EPL) insurance policy. An EPL policy generally affords coverage for claims brought by employees alleging wrongful employment acts, including discrimination, wrongful termination, retaliation, or sexual harassment subject to the terms and exclusions of the policy. Accordingly, a standard form EPL policy may provide coverage for obesity-related claims of discrimination brought by employees.