Obesity in the Workplace

by Jaburg Wilk

[author: David N. Farren]

No doubt being overweight can pose a health problem. But is it a protected disability under the Americans with Disabilities Act of 1992 (ADA) that bars employers from discriminating against employees or prospective employees who are obese? According to a recent decision of the Montana Supreme Court and similar decisions in the federal courts, it is, or at least can be.

In BNSF Railway Co. v. Feit, 281 P.3d 225 (Mont. 2012), in a four-to-one decision, the Montana Supreme Court held that obesity is an impairment that can qualify as a protected disability under the Montana Human Rights Act (MHRA), state laws that parallel the ADA, even if it is not symptomatic of a physiological disorder - that is, even if the obesity is self-imposed, rather than weight gain caused by an underlying medical condition. Arizona has similar state laws found in the Arizona Civil Rights Act (ACRA), A.R.S. §§ 41-1461, et seq., but our courts have not addressed the issue.

In the Montana case, Feit sued BNSF Railway for discrimination when it refused to hire him as a conductor unless he passed physical exams and lost 10% of his apparently considerable body weight. BNSF argued that Feit's obesity was not caused by any physiological disorder and, therefore, was not an impairment or protected disability under the MHRA. The Montana Supreme Court disagreed.

The Montana Supreme Court in Feit relied on the ADA Amendments Act of 2008 (ADAAA) and the EEOC's interpretive guidelines, revised since then, to find that obesity is an impairment and can be a protected disability under the MHRA, even if it is not a symptom of a physiological disorder. The ADA defines a "disability" as a "physical or mental impairment that substantially limits one or more of a person's major life activities." The EEOC's guidelines define "impairment" to include "[a]ny physiological disorder or condition . . . affecting one or more body systems . . . . " See 29 C.F.R. §1630.2(h)(1) (2011). The ADAAA does not expand either of those definitions, but it does chastise the federal courts for being too restrictive in deciding who is and who is not disabled. It also expressly states that, as matter of public policy and Congressional intent, "the definition of disability . . . shall be construed in favor of broad coverage . . . to the maximum extent permitted" by law.

Thus, the ADAAA has spurred the EEOC to rewrite its guidelines and policies to pronounce, or at least to suggest, that one's weight, if excessive, is or can be a physical impairment that qualifies as a protected disability, even if it is not symptomatic of a physiological disorder. See 29 C.F.R. pt. 1630 app. §1630.2(h) (2011). The EEOC's Compliance Manual, used by courts to gain helpful insight into the agency's interpretations of the law, states that "being overweight, in and of itself," is generally not an impairment, but that "severe obesity, which has been defined as body weight more than 100% over the norm . . . is clearly an impairment." EEOC Compliance Manual §902.2(c)(5)(ii). Moreover, although the distinction between self-imposed obesity and obesity that is caused by a physiological disorder has often been drawn as a means to segregate persons who can be "blamed" for their condition from those who can't, the EEOC has always taken the position that "[t]he cause of a condition has no effect on whether that condition is an impairment" under the ADA. See EEOC Compliance Manual §902.2(e). In theory, then, obesity should be treated no differently from physical impairments caused by smoking.

Pre-ADAAA, courts had disagreed about issues such as whether obesity causes a substantial limitation of a major life activity and whether it can be a protected disability if it is not caused by a physiological disorder. Most federal courts had held that obesity, even severe obesity, was not an impairment that can qualify as a protected disability. See, e.g., EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006) ("to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition"); Andrews v. Ohio, 104 F.3d 803, 810 (6th Cir. 1997); Francis v. City of Meriden, 129 F.3d 281, 286-87 (2nd Cir. 1997) (physical characteristics such as weight that do not result from a physiological disorder are not an impairment). Other courts disagreed. See, e.g., Cook v. State of Rhode Island, Dept. of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993)(held that morbid obesity was a physical impairment based on expert testimony presented at trial). Others hedged their bet. See Francis v. City of Meriden, 129 F.3d 281 (2nd Cir. 1997) (except in special cases, morbid obesity is not an impairment, but there may be a claim based on an employer's perception that the employee is morbidly obese).

Post-ADAAA, recent federal court decisions and the Montana Supreme Court have concluded that obesity is, or at least can be, a protected disability if the individual's weight is more than 100% over norm, defined as "severe obesity" by the EEOC, even if the obesity is not caused by a physiological disorder. See, e.g., EEOC v. Resources for Human Dev., Inc., 827 F.Supp.2d 688, 694 (E.D.La. 2011) (concluding that, according to the EEOC Compliance Manual, there is no explicit requirement that obesity be based on a physiological impairment); Lowe v. American Eurocopter, LLC, 2010 WL 5232523, *7-8, (N.D.Miss. 2010) (denying motion to dismiss plaintiff's ADA claim based on the plaintiff's obesity, noting the "substantial expansion of the ADA by the ADAAA" and that cases which had previously thought obesity had to be caused by a physiological disorder "were all before the ADAAA took effect"); but see Lescoe v. Pa. Dept. of Corrects., 2012 WL 505896, *2-3 (3rd Cir. 2012) (affirming summary judgment in the employer's favor, but failing to address the ADAAA or the EEOC's revised guidelines).

This shift in the law has broad implications for all employers beyond hiring and firing employees. For example, must an employer provide special equipment, furniture or transportation, or extra-wide doorways, in response to a severely obese employee's request for reasonable accommodation of his or her disability? Can an employer who is self-insured charge higher health insurance premiums to its obese employees, as some do to their employees who smoke, based on statistically higher health risks?

The answers to these and many other questions will be litigated for years to come.

What this Means for Arizona Employers and Employees

What effect will this recent development in federal law have in Arizona? For employees who believe they have a claim, the EEOC remains the best choice for vindicating their rights under federal law, primarily the ADA and the ADAAA. Claimants who believe they are victims of disability discrimination or retaliation should seek legal counsel immediately and/or file a charge with the EEOC within the 300-days limitations period and, when permitted to do so, file a federal court complaint to assert their rights.

For employers, the best defense is to be aware of the change in the law to conduct its employment practices in accordance with the law, or, better, in accordance with what the law might be in the near future. Better to be aware of the issue and comply, rather than ignore the issue and be the next "test case" in court.

Employers are required to meet and confer with any possibly disabled employee who requests reasonable accommodation of his or her disability to discuss the matter. Employers should be cautious and not allow teasing or a hostile work environment related to an employee's weight. Employers who terminate an obese employee should be certain they can demonstrate good cause for the termination unrelated to the employee's weight. In other words, a cautious employer should treat obesity with the same standards and care it uses when dealing with any disabled person.

An employer who has 15 or more employees is exempt from complying with the ADA or the ACRA. If an employer is not exempt and a disability claim is made, and although it may not have a choice in the matter, the Civil Rights Division of the Arizona Attorney General's Office is the best place to be. As noted, our courts have not addressed the obesity issue in an employment context. In fact, no Arizona court has addressed the issue in any context, except for the rare and likely irrelevant personal injury or Industrial Commission case. See, e.g., Hirsh v. Manley, 81 Ariz. 94, 100, 300 P.2d 588, 592 (1956) (trial court properly refused jury instruction that it could not award damages to plaintiff based on "pre-existing conditions of obesity, menopause and/or poor posture"); Foster v. Industrial Commission, 7 Ariz. App. 489, 492, 441 P.2d 255, 258 (1968) (found that claimant was totally disabled and lacked any earning capacity, noting that, "while not in and of itself a disabling condition, medical testimony established that applicant's excessive obesity is the chief cause of his present complaints). There may still be room to argue that, in Arizona, the ACRD has not been amended and its enforcement policies are not in line with federal laws and policies that may now include obesity as a protected disability.

Whether you are an employee or employer, there is no easy or safe shortcut to managing your legal rights and liabilities without the advice of competent employment law counsel.

About the author: David Farren is an attorney at the Phoenix law firm of Jaburg Wilk and works in employment law, contract and business law and commercial litigation. He can be reached at 602-248-1048 or at dnf@jaburgwilk.com.

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.

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