Expanding Waistlines, Expanding Definitions: Obesity as a Disability?

by Spilman Thomas & Battle, PLLC
Contact

[author: Lindsay Griffin Smith]

The Centers for Disease Control has ranked West Virginia as having the third highest percentage of obese adults in the United States, and the percentage of obese adults in Virginia, North Carolina and Pennsylvania rival that of West Virginia. Such a high percentage of overweight adults renders the possibility that obesity could become a protected class, and thus could become an issue to all employers. Since the 2008 Amendment to the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”) and courts have expanded the legal definition of when obesity constitutes a “disability;” employees no longer have to establish that a physiological disorder caused their obesity – now obesity alone can be an impairment sufficient to categorize an employee as disabled. The EEOC has discarded its portion of the Compliance Guidelines that define disability, making it possible for courts to find that obese employees, not only severely or morbidly obese employees, can qualify as a protected class under the ADA, and at least one state court has followed suit. Because the ADA makes it easier for obese employees to establish that they are disabled, employers in all states should re-evaluate their hiring, firing and accommodation policies.

Obesity as a Disability

For the ADA to apply, an employee must have a disability, a record of disability, or have been regarded as disabled. See 42 U.S.C. §§ 12111-17. Being “regarded” as disabled requires an actual or perceived physical or mental impairment by the employer. 42 U.S.C. § 12102(3)(A). Even prior to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), some state and federal courts held that obesity could qualify as a physical or mental impairment. For obesity to be considered a disability prior to the 2008 amendment, however, it had to be caused by a physiological disorder. With the passing of the ADAAA, Congress made clear its intent that the definition of disability be construed broadly to effectuate a wider scope of employee protection. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). This more inclusive definition of disability has led some state courts as well as the EEOC to forgo the earlier requirement that for obesity to be a disability, it had to be caused by a physiological disorder. See e.g. Lowe v. American Eurocopter, LLC, 2010 U.S. Dist. LEXIS 133343, ** 23, 25 (N.D. Miss. Dec. 16, 2010); EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

EEOC Abandons Need for Physiological Disorder Causing Obesity

The EEOC has publicly stated that “the law protects morbidly obese employees and applicants from being subjected to discrimination because of their obesity.” Press Release, U.S. Equal Opportunity Employment Commission, BAE Systems Subsidiary to Pay $55,000 to Settle EEOC Disability Discrimination Suit. (Jul. 24, 2012) at http://www.eeoc.gov/eeoc/newsroom/release/7-24-12c.cfm. In Civil Action No.:11-cv-3497, the EEOC filed suit on behalf of a terminated employee, Ronald Kratz II, against BAE Systems Tactical Vehicle Systems, LP (BAE Systems), a global security and defense company. The EEOC alleged that BAE Systems regarded Mr. Kratz as disabled because of his size and terminated Kratz because he weighed over 600lbs. Despite his size, Kratz was able to perform the essential duties of his job and received good performance reviews. Mr. Kratz was not offered any accommodation and was fired.  The EEOC alleged that morbid obesity is a disability protected under the ADAAA, forgoing any mention of a requisite physiological disorder. The case settled in late July with BAE Systems paying $55,000 in damages, providing Mr. Kratz with six months of outplacement services, and training of the company’s managers and human resources professionals.

Montana Adopts the Broader Definition of Obesity as a Disability

A few weeks prior to the BAE Systems’ settlement, the Montana Supreme Court held that obesity can be a disability even if an employee’s obesity is not the result of a physiological disorder. BNSF Railway Co. v. Feit, OP 11-0463 (Mont. 2012). In BNSF, the plaintiff applied to Burlington Northern Santa Fe Railway Company (BNSF) for the position of conductor trainee. In his complaint, the plaintiff alleged that BNSF discriminatorily refused to hire him because it regarded him as disabled due to his obesity. BNSF contended that the plaintiff was not qualified for the conductor trainee position because of the “significant health and safety risks associated with extreme obesity.” BNSF, however, extended a conditional offer to the plaintiff requiring that he lose 10% of his body weight or successfully complete physical examinations at his own expense due to the “safety sensitive” nature of his desired position. The plaintiff completed all physical examinations but one – an $1,800 sleep study that he could not afford.  He was denied employment.

The BNSF court held that obesity could be considered a physical or mental impairment even if it was not the result of a physiological disorder. Relying on the ADAAA’s expanded definition of “disability,” the Montana Supreme Court held that to constitute “obesity” for purposes of a discrimination claim, an individual’s weight must be outside the “normal range” and affect “one or more body systems.” BNSF Railway Co. v. Feit, OP 11-0463 (Mont. 2012) at ¶ 16 citing 29 C.F.R. § 1630.2(h)(1) (2011).

Prior to the ADAAA, the EEOC compliance manual defined weight outside the “normal range” as “body weight more than 100% over the norm.” EEOC Compliance Guidelines § 902.2(c)(5). However, the EEOC has removed Section 902, the definition of disability, from its Compliance Guidelines “since the analysis in it has been superseded by the ADA Amendments Act of 2008.” EEOC Compliance Guidelines § 902 at http://www.eeoc.gov/policy/docs/902cm.html. The EEOC states: “The ADAAA makes it easier for individuals challenging employment actions under Title I of the ADA to establish that they meet the definition of “disability” and are thus protected by the law.” Id. This opens the door for courts to reinterpret weight outside the “normal range” to include a wider range of employees. Thus employees that fall into the category of “obese” instead of severely or morbidly obese, may also be protected by the ADAAA if they meet the other requirements of having a disability.

Employer Should Revisit Hiring and Training Practices

Employers should revisit and, if necessary, readjust current hiring and training practices for employees with disability discrimination lawsuit prevention in mind. The three requirements included in the BAE Systems settlement agreement are beneficial guideposts that should be followed by employers: train company managers and human resource personnel in (i) equal opportunity employment compliance, (ii) disability discrimination including obesity as a disability, and (iii) reasonable accommodation responsibilities provided by the ADA.

For more information, please contact:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC
Contact
more
less

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.