Weight Bias in Employment
It has been widely reported that obesity is a growing epidemic across the United States. According to the Centers for Disease Control, more than one third of adults in the United States were obese in 2009–2010.
The Yale Rudd Center for Food Policy & Obesity at Yale University reports:
- Overweight people earn 1 to 6 percent less than non-overweight people in comparable positions
- Overweight people get fewer promotions
- Overweight people are viewed as lazy, less competent and lacking self-discipline by their employers and co-workers
- Overweight people can be fired or suspended because of their weight, despite demonstrating good job performance and even though weight is unrelated to their job responsibilities.
The Yale Rudd Center reported that a 2007 study of more than 2,800 Americans found:
- Overweight adults were 12 times more likely to report weight-based employment discrimination compared to “normal” weight adults
- Obese persons were 37 times more likely to report such weight-based discrimination compared to “normal” weight adults
- Severely obese adults were 100 times more likely to report weight-based discrimination.
These statistics are the breeding ground for claims brought by obese individuals against employers.
Currently, Michigan is the only state that has enacted legislation that explicitly prohibits discrimination in the workplace on the basis of a person’s weight. In addition, six cities in the United States have enacted similar laws – Urbana, IL; Madison, WI; Santa Cruz and San Francisco, CA; Washington, D.C; and Binghamton, NY.
While there is no federal statute that specifically identifies obese individuals as a protected class, employees and job applicants across the country have initiated lawsuits alleging disability discrimination on the basis of their weight.
Pre-ADAAA: Obese Individuals Provided Limited Protection Under the ADA
Prior to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009, a majority of courts faced with the issue of whether obese individuals are afforded protection under the ADA held that obesity is not an impairment that limits a major life activity unless it relates to or results from a physiological condition.
Indeed, the courts found support for this position from the EEOC.
- The EEOC’s Interpretive Guidance on Title I of the Americans with Disabilities Act states that an impairment does not include physical characteristics, such as weight, that are within normal range and not the result of a physiological disorder. 29 C.F.R. pt. 1630 app. § 1630.2(h). 1
- Prior to the ADAAA, the EEOC’s Interpretive Guidance stated that, only in “rare circumstances” may obesity rise to the level of being considered a disabling impairment. 29 C.F.R. pt. 1630 app. § 1630.2(j). 2
- The EEOC Compliance Manual, which is an interpretation of the laws for EEOC investigators, states that, “being overweight, in and of itself, is not generally an impairment …On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm is clearly an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment.” EEOC Compliance Manual § 902.2(c)(5)(ii) (internal citations omitted). 3
ADAAA: Its Impact on Obesity in the Workplace
Congress enacted the ADAAA with the stated purpose of “reinstating a broad scope of protection … under the ADA.” 29 C.F.R. § 1630.1(c)(4). In keeping with this goal, the ADAAA states that the definition of disability in the Act shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the statute. 42 U.S.C.A. § 12102(4)(a). Consistent with the mission of the ADAAA since it took effect, the trend in recent decisions is for courts to find that obesity may constitute a physical or mental impairment sufficient for coverage under the ADA irrespective of whether it is a symptom of a physiological condition.
The following are key take-away points from the ADAAA and the EEOC’s Regulations implemented following the ADAAA that are relevant to obesity in the workplace.
“Regarded As” Disabled
Under the ADA, an individual is disabled if he satisfies one of the following three prongs: (1) he has a physical or mental impairment that substantially limits one or more of his major life activities; (2) the employer has a record of such impairment; or (3) the employer regards him as having such an impairment. 42 U.S.C.A. § 12102(1).
Under the ADAAA, an individual can satisfy the “regarded as” prong if he has been subject to an employment action prohibited by the ADA and proves that the employer perceived him as having an impairment. This definition expands coverage under the “regarded as” prong because an individual does not need to show that his impairment limits a major life activity or that the employer perceived the impairment as limiting a major life activity. 42 U.S.C.A. § 12102(3)(a).
The EEOC’s Regulations implemented following the ADAAA clarify that an individual must be covered under the first prong (actual disability) or second prong (record of disability) in order to qualify for a reasonable accommodation under the ADA. 29 C.F.R. § 1630.2(g)(3). While discrimination against an employee who is “regarded as” disabled is prohibited, there is no obligation to provide a reasonable accommodation under the “regarded as” prong.
The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability. 29 C.F.R. § 1630.2(j)(1)(ii).
The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 42 U.S.C.A. § 12102(4)(a)(b).
With the exception of “ordinary eyeglasses or contact lenses,” the determination of whether an impairment substantially limits a major life activity is made without consideration of corrective or mitigating measures, such as medication or hearing aids. 29 C.F.R. § 1630.2(j)(1)(vi).
Major Life Activities
The ADAAA, and consequently the EEOC in its Regulations, expanded the ADA’s list of tasks that constitute major life activities. The following is a nonexhaustive list of tasks that are deemed “major life activities”: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. 42 U.S.C.A. § 12102(2)(A); 29 C.F.R. § 1630.2(i)(1)(i).
The ADAAA also expanded the definition of “major life activities” to include “the operation of major bodily function,” which includes the following non-exhaustive list: “functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.” 42 U.S.C.A. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(ii).
Post-ADAAA: Courts Broaden Protection for Obese Individuals
Courts are responding to the broader scope of coverage afforded to individuals, including obese individuals, under the ADAAA.
BNSF Ry. v. Feit, 2012 MT 147, 2012 Mont. Lexis 192 (Mont. July 6, 2012) arose from a job applicant who alleged that a railway company discriminated against him in violation of Montana’s state fair employment statute when it refused to hire him because it regarded him as being disabled as a result of his obese condition. After both of Montana’s state human rights departments found in favor of the alleged obese job applicant, the railway petitioned the United States district court to rule on whether it violated the state fair employment statute.
The federal district court certified to the Supreme Court of Montana the question of whether obesity that was not the symptom of a physiological condition was a “physical or mental impairment” as that term is used in Montana’s state anti-discrimination employment statute, which tracks the ADA.
On July 6, 2012, the Supreme Court of Montana responded to the certified question as follows:
Taken together, the ADA, ADAAA, and the EEOC’s interpretation are clear and provide persuasive guidance in interpreting [Montana’s state statute]. Based on the foregoing … Obesity that is not the symptom of a physiological disorder or condition may constitute a “physical or mental impairment” … if the individual’s weight is outside “normal range” and affects “one or more body systems” as defined in [the Code of Federal Regulations].Id. at 16.
In Lowe v. American Eurocopter, LLC, 1:10CV24-A-D, 2010 U.S. Dist. Lexis 133343 (N.D. Miss. Dec. 16, 2010), an employee alleged that her employer terminated her employment in violation of the ADA because it regarded her as being disabled as a result of her obese condition, and she alleged that her employer harassed her as a result of being overweight.
The employer filed a motion to dismiss the lawsuit, arguing that obesity is not a disabling impairment under the ADA. The court denied the motion to dismiss on this basis noting that, “Based on the substantial expansion of the ADA by the ADAAA, Defendant’s assertion that Plaintiff’s weight cannot be considered a disability is misplaced.”
The plaintiff in Lowe asserted that she was unable to park her car and walk from the employee parking lot. The court interpreted this assertion as plaintiff’s attempt to show that she was substantially limited in the major life activity of walking, and noted that under the ADAAA, in a “regarded as” disability case such as this one, an employee no longer has to show that the impairment she is regarded as having substantially limits a major life activity.
However, as noted in Sibilla v. Follett Corp. d/b/a Follett Higher Educ. Grp., cv 10-1457, 2012 U.S. Dist. Lexis 46255 (E.D.N.Y. March 30, 2012), when a New York federal district court disposed of two plaintiffs’ claims of disability discrimination on summary judgment, even under the ADAAA, “[t]he fact that an employer regards an employee as obese or overweight does not necessarily mean that the employer regards the employee as suffering from a physical impairment.”
Another case worthy of mention, even though the court did not make a substantive ruling on the merits, was filed by the EEOC against an employer in the United States District Court for the Southern District of Texas, (Court No. 11-cv-3497), wherein the EEOC alleged that the employer terminated the employment of Ronald Kratz after approximately 15 years of employment because it regarded Mr. Kratz as being disabled as a result of his morbid obesity. The EEOC also pled that Mr. Kratz was actually disabled as a result of his obesity, and the employer refused to engage in the interactive process with him to determine if there was a reasonable accommodation that would have enabled him to perform the essential duties of his job.
Although not specifically pled in the EEOC’s complaint, on July 24, 2012, www.jobs.aol.com reported that because of Mr. Kratz’s weight, the seat belt on the forklift he operated at work did not extend far enough for him to buckle it. Mr. Kratz reportedly asked his employer for a seat belt extender, but his employer denied his request and terminated Mr. Kratz’s employment two weeks later.
On July 23, 2012, the court entered a consent decree whereby the employer agreed to pay Mr. Kratz a sum of money and pay for six months of job placement services, in addition to various obligations to train employees and report matters to the EEOC.
What This Means for Employers
- Notably, many of the disability discrimination cases stemming from obesity are brought by individuals who claim that employers perceived them as having an impairment. Under the ADAAA, such individuals do not need to show that the obesity interferes with a major life activity nor do they need to show that the employers perceived the impairment as interfering with a major life activity. This has the effect of expanding coverage for obese individuals pursuing ADA claims under the “regarded as” prong. Further to the point, it is not sufficient for an individual to show that the employer regarded him as obese.
- To qualify as a disability under the ADA, an impairment need only substantially limit one major life activity, which includes major bodily functions. For example, a person with diabetes, a condition associated with obesity, is substantially limited in endocrine function, and therefore, on that basis alone, may be considered disabled. The same holds true for an individual with high blood pressure, another condition associated with obesity.
- With very limited exceptions, courts look to the condition in its untreated state to determine if it substantially limits a major life activity. Therefore, an individual who has diabetes that is well controlled by insulin, or high blood pressure that is well controlled by medication, may still be considered substantially limited in a major life activity.
- Employers should implement, distribute and enforce anti-harassment policies that protect individuals from illegal harassment based on all protected classifications, including disability. Jokes, comments, gestures and the like targeted at obese individuals should not be tolerated in the workplace.
- Employers should engage in an interactive process with their job applicants and employees, and provide individuals who have a disability with reasonable accommodations.
- Employers need to be cognizant of the impact of policies they implement. For example, it has been widely reported that a hospital in Victoria, TX, recently came under fire after it adopted a policy of not hiring job applicants whose body mass index (BMI) exceeds 35, which is 245 pounds for someone who is 5 ft. 10 inches tall. After being subjected to much negative publicity, the hospital reversed its policy.
The employment law professionals at Wilson Elser are available to help employers in providing guidance through the developing law under the Americans with Disabilities Act as it relates to obesity and other conditions.