Is passing gas now protected by our anti-discrimination laws? Over the past several years, we have written extensively (here, here, here and here) about the possibility of obesity discrimination lawsuits becoming the next wave of disability discrimination litigation, and now we have a new test case in New Jersey, and this time with a unique twist or two: a terminated employee claiming that his “extreme gas,” symptomatic of surgery related to his “disability” of obesity, led to his alleged unlawful termination, and the employee’s wife (who also happens to be his co-worker) claiming in a federal lawsuit that she was constructively discharged because of her association with her obese husband.
In the curious case of the pork roll wind-breaker, the part-time administrative assistant to the pork roll company’s comptroller (also his wife) alleges that her comptroller, who formerly weighed 420 pounds and suffered from the “disability” of obesity, “suffered side effects such as extreme gas and uncontrollable diarrhea” stemming from his gastric bypass surgery. The wife further alleges that the company’s president and owner constantly complained about the flatulence, telling her husband that he needed to work from home and making remarks such as, “We cannot run an office and have visitors with the odor in the office.” The wife alleges that her husband’s employment was ultimately terminated because of his symptoms and that she resigned the same day, amounting to a constructive discharge, resulting from the harassment she faced because of her husband’s condition. While the husband is pursuing his claims before the EEOC, the wife filed a federal lawsuit in New Jersey alleging disability discrimination (by association) under the Americans with Disabilities Act and New Jersey’s Law Against Discrimination.
Given that the EEOC takes the position that severe obesity is a disability under the ADA and does not necessarily require proof of an underlying physiological disorder, several courts have found varying degrees of obesity to be considered “disabilities” under the law. The plaintiff’s lawyer in this case commented to the Huffington Post, “Flatulence and farting is the sexy part of the story, but my client suffers from obesity, which is covered by the Americans with Disabilities Act.” While I am constrained to question this lawyer’s opinion as to what is “sexy,” he does raise an interesting point concerning obesity as a disability, which remains an open question despite what he would have you believe. It will be fascinating to see (and we will monitor) whether the court takes a position on this issue. Assuming for the sake of argument that this individual’s condition constitutes a protected “disability,” another question (for another day) is what, if anything, the employer could have done to fulfill its obligation of engaging the employee in an interactive process to devise a reasonable accommodation if, in fact, employees and customers were complaining about the odor in the office.