Formerly, Michigan [pdf] was the only state to explicitly declare weight a protected class according to state discrimination law.  However, at both the state and federal level, administrative agencies and courts are beginning to contemplate whether legal protections should be afforded to obese individuals under state law and the Americans with Disabilities Act (ADA) Amendments Act of 2008.  The two recent cases discussed in the following seem to indicate that obesity may, in certain situations, be a disability protected under the ADA.

In 2011, the EEOC filed suit against a Texas employer, BAE Systems Tactical Vehicle Systems (BAE), alleging unlawful disability discrimination in violation of the ADA Amendments Act of 2008, which emphasizes a broad interpretation of disability.  The EEOC’s complaint stated that a former employee, Ronald Kratz, had been discriminated against based on his actual or perceived disability of morbid obesity.  Specifically, the EEOC alleged that BAE unlawfully discriminated against Kratz by terminating his employment, denying him reasonable accommodation, and for otherwise denying him equal employment opportunities within BAE.  On July 24, 2012, the case was settled for $55,000.   As part of the settlement, BAE is required to provide training for the company’s managers and human resources professionals on equal employment opportunity compliance, disability discrimination law and reasonable accommodation.  The company is also required to post an anti-discrimination notice.

Similarly, Montana, with a state statute modeled after ADA, also recently found that obesity may be a disability under the ADA Amendments Act of 2008.  In BNSF Railway Company v. Feit, Eric Feit applied for employment at Burlington Northern Santa Fe Railway Company (BNSF).  The company made him a conditional offer of employment as a conductor trainee, subject to completion of, among other things, a physical examination.  After the physical examination, BNSF determined that Feit was not qualified because of health and safety risks that his extreme obesity presented in the safety sensitive position. BNSF informed Feit that he would not be further considered for the job unless he lost 10% of his body weight or successfully underwent additional physical examinations at his own expense.  Accordingly, Feit successfully underwent several additional physical exams but could not afford the required sleep test.  Because Feit failed to complete all additional testing, the company refused to reconsider their hiring decision.  Thereafter, Feit filed an administrative complaint alleging that BNSF illegally discriminated against him because of a perceived disability—obesity.

The Montana Department of Labor found in Feit’s favor on the grounds that BNSF had regarded him as disabled.  The Montana Human Rights Commission affirmed this decision.  BNSF appealed to the U.S. District Court for Montana to review whether it had violated Montana law.  The district court then certified a question to the Montana Supreme Court inquiring whether obesity that is not the symptom of a physiological condition can be considered a “physical or mental impairment” as it is used in Montana law.  The Montana Supreme Court answered in the affirmative.  In its analysis of state discrimination law, which uses the same terms as the federal ADA, the state Supreme Court looked to the EEOC’s regulations and guidance and relied upon such to reach its conclusion that obesity, even with no underlying medical condition, may constitute a disability.

Although these cases are not binding nationwide, they are certainly demonstrative of how future courts and administrative agencies are likely to view obesity in the context of disability discrimination under state law and the ADA.  Because the law is unclear on this matter, employers are best advised to proceed with caution when considering requests for accommodation based on weight.