Imagine the hiring manager for Company A is interviewing a highly qualified candidate (let's call him Jack). During the interview, they observe that, because of his weight and size, Jack struggles to walk at a typical pace and is unable to bend to retrieve an item that falls from his pocket. He politely asks for the manager's help in picking it up. Because the position requires very little physical activity, Jack is extended an offer, which he accepts. Within a year, Jack undergoes a dramatic transformation, losing more than half his body weight with the help of the increasingly common GLP-1 medication Ozempic.
Soon thereafter, Jack approaches Company A's personnel manager and requests to be transferred to a new team within the organization. He explains that several co-workers who had mocked him for months about his weight are now ridiculing the excess skin caused by his rapid weight loss and, more specifically, his "Ozempic face." The comments and gestures have become so frequent that he is struggling to focus on his work. The only open position, however, requires an ability to bend and lift at least 50 pounds—tasks Jack successfully demonstrates he can perform. Despite this, and based on the noted observations from Jack's earlier interview, the personnel manager worries that he will be unable to perform the job if his obesity recurs. They therefore deny the transfer request. Before leaving the personnel manager's office, Jack declares that he is disabled, and their actions violate the Americans with Disabilities Act's (ADA) prohibitions on disability discrimination and a hostile work environment. Does he have a case?
Under the ADA, disability discrimination generally requires a showing that an employee (1) has a disability; (2) can perform the essential functions of the job, with or without reasonable accommodation; and (3) has suffered an adverse employment action because of their disability. An employer might be tempted to conclude that because Jack is no longer obese, his "Ozempic face" cannot constitute a disability. After all, excess or hanging skin does not seem to easily satisfy the definition for "disability": a physical impairment that substantially limits a major life activity. That said, the EEOC's definition of "physical impairment" is broad and extends to "cosmetic disfigurements" affecting body systems such as the "skin." While Jack's excess skin is unlikely, under the circumstances, to substantially limit a major life activity, the outcome might differ if he had instead reported that his skin restricted his ability to sit for long periods of time, bend, or engage in other physical tasks.
But that is not Jack's only avenue for ADA protection. The EEOC, and some federal courts, recognize obesity itself as a disability when it substantially limits a person's ability to walk, bend over, or perform other major life activities—limitations that Company A's hiring manager observed during the interview. For individuals like Jack, however, whose impairment has been successfully treated or managed through medication, the ADA offers two additional pathways to coverage: the "record of" and the "regarded as having" as impairment prongs of disability.
Under the record of prong, the ADA prohibits adverse employment actions against individuals who have a history of a physical impairment, such as obesity, that substantially limits a major life activity. Courts have applied this protection to people who have recovered from disabling conditions but remain vulnerable to employer fears and stereotypes. If Jack's transfer was denied based on an unsubstantiated fear that his obesity might return, a court could conclude that he falls within this protection and has met the first element of pleading disability discrimination.
The regarded as prong is similarly expansive. It applies whenever an employer believes—accurately or mistakenly—that an employee has an impairment that, if it existed, would be covered under the ADA's definition of disability. If Jack can show that his employer perceived him, despite his current weight, as having an underlying condition that would cause the recurrence of his obesity, he may be able to demonstrate that he was regarded as having an impairment and thus satisfies the first element of an ADA claim.
Finally, if the personnel manager takes no action in response to Jack's complaint about co-workers mocking his "Ozempic face" and appearance, that may also support a hostile work environment claim under the ADA. Such claims follow the same framework as those pursued under Title VII: the employee must typically show (1) unwelcome harassment; (2) based on their disability or perceived disability; (3) that is sufficiently severe to create a hostile or abusive work environment; and (4) that the employer failed to take prompt corrective action. While Ozempic-related facial gauntness may not constitute a disability on its own, harassment based on the physical side effects of an employee's prescribed treatment for an underlying impairment—such as obesity—raises significant risk. Although no court has yet squarely addressed this issue, it is difficult to imagine the ADA's protections functioning properly if employers could ignore remedying harassment directed at the lasting physical effects of an employee's disability or its treatment.
