I have written over the year regarding disability discrimination and the notion that an employer can be subject to a discrimination complaint under both state and federal law if the employer “perceives” an individual to be disabled and unable to perform the duties of his/her position.  I often wonder if the public “perceives” Santa Claus to be disabled and unable to perform his duties of delivering gifts to children across the world.  How can Santa swoop down the chimney recognizing that he suffers an obvious condition of obesity?

It is not clear whether obesity, in and of itself, constitutes a disability.  The case law regarding the condition of obesity has gone through various iterations.  I believe the current state of the law is that obesity, in and of itself, does not constitute a disability.  An employer may, however, be accused of discrimination if the employer perceives that an individual is disabled because of their excess weight and not able to perform the duties of their position.  These cases are often hard to prove because it involves the need to prove that the employer took some type of adverse employment action because the employer perceived the employee to be unable to perform work for the Company.  Proving this may be very difficult under most circumstances.

Would you be accused of considering Santa Claus disabled because of his weight?   Employers thinking about this are reminded that they should not make assumptions regarding the ability of an individual to perform the duties for which they are hired or are being considered for employment.  Perceived disability can be a dangerous area and could result in no presents for Christmas.

Merry Christmas and Happy New Year to all our readers.  May 2017 be joyous and fulfilling.