A Weighty Question For Employers: Is it Illegal to Discriminate Against Employees Because of Obesity?
Wayne "Skip" Adams
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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowSince the passage of the Americans with Disabilities Act ("ADA"), one of the issues which continues to perplex employers is whether obesity is a disability under the Act. The answer to this question is important for many reasons. As the percentage of our population that is obese continues to increase, so does the frequency of employment-related decisions involving obese individuals. In some cases, obesity may so severely impair an applicant’s or employee’s stamina, mobility, or ability to use equipment that the individual is unable to perform the available work. In other situations, a worker’s obesity may present genuine safety concerns. If obesity is a disability under the ADA, the employer with these concerns would be obligated to engage in an interactive process with the individual to attempt to find one or more reasonable accommodations to enable the person to do the job. Refusing to hire an applicant or firing an employee because of obesity without attempting to reasonably accommodate him or her would violate the ADA. On the other hand, if obesity is not a disability under the ADA, or any applicable state or local law or ordinance, the employer would have no legal duty to give the obese applicant or employee reasonable accommodations and could lawfully refuse to hire or fire the individual because of the obesity. Only the state of Michigan and a handful or municipalities around the country, including Urbana, Illinois and Madison, Wisconsin, prohibit discrimination because of an applicant’s/employee’s weight.
So what have the courts said on the issue? In 1993, the U.S. Court of Appeals in Boston was the first to rule on this subject. In a case interpreting the definition of "disability" under the federal Rehabilitation Act, which parallels the ADA, the court upheld a jury verdict against an employer who refused to hire an obese applicant. The employer rejected her, because it feared her obesity would put her at greater risk of developing serious health conditions and limit her mobility, which would compromise her ability to perform the job. Although the court concluded the employer violated the law, because it "regarded" the applicant as disabled (a separate type of discrimination under the Act), it also volunteered that, even if the employer had not so regarded her, it violated the law simply because obesity, standing alone, is a disability, and the employer undisputedly rejected her because of it. Since then, each of the other three federal appeals courts confronting the question have held, to the contrary, that obesity is not a disability within the meaning of the ADA unless it is caused by an underlying physiological disorder that is a disability under the Act. One of the courts adopting that interpretation was the Sixth Circuit Court of Appeals. Its ruling applies to employers and employees in Ohio, as well as Kentucky, Michigan and Tennessee. Until the decision in Richardson v. Chicago Transit Authority last November, no federal courts in Indiana, Illinois or Wisconsin, had addressed the issue. In that case, a judge in the U.S. District Court for the Northern District of Illinois followed the lead of the Second, Sixth and Eighth Circuits and granted summary judgment against the plaintiff bus driver because his obesity was not caused by an underlying condition covered by the ADA.
However, the bus driver has appealed to the Seventh Circuit Court of Appeals in Chicago, and a number of medical and other organizations have joined in filing a "friend of the court" brief urging the appeals court to overturn the decision. Their argument rests in part on a resolution adopted by the American Medical Association House of Delegates in 2013 declaring that obesity is a “disease.” The groups supporting the bus driver’s appeal argue that obesity is not only a disease, but an impairment that affects many parts of the body and many life activities; thus, they contend it falls squarely within the ADA’s definition of disability. The outcome of this appeal, which may not be forthcoming for several months, will not be the final word on the subject. Ultimately, the Supreme Court may need to answer the question.
In the meantime, how should employers protect themselves against liability for personnel decisions involving obese individuals? For starters, do not make decisions based on assumptions that an individual’s weight will prevent her or him from performing satisfactorily or will lead to other health problems that may adversely affect attendance or increase health insurance claims. If an employee must be able to engage in certain physical activities in order to perform the essential functions of the job, the employer may require applicants to demonstrate their ability to participate in those activities. However, employers should not single out overweight applicants for pre-hire tests or simulations that are not required of all candidates for the job. If an overweight applicant or employee requests an accommodation, the employer should engage in an interactive process with the individual to attempt to identify one or more reasonable accommodations. However, an employer is not required to provide accommodations that are not reasonable or would impose an undue hardship on the employer or its business. If an overweight employee complains of harassment, the employer should investigate the complaint and take prompt corrective action if the investigation confirms the complaint, just as it should for a complaint of harassment based on race, gender, age, national origin or any other protected class. In summary, until the question of whether obesity is a disability is answered once and for all, employers can reduce the risk of discrimination liability by keeping focused on the job requirements and whether reasonable assistance can be provided, regardless of whether obesity is a disability.
For more information, contact Wayne "Skip" Adams or another member of our Labor, Employment and Immigration Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.