Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

“Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11).

Noting that there is no federal law prohibiting discrimination based on obesity, the court reviewed decisions by courts of appeals which had previously considered whether obesity is a disability under federal laws prohibiting discrimination on the basis of a disability. The Second and Sixth Circuits had held in ADA cases that morbid obesity was not an impairment, and thus not a disability under the ADA, except where the obesity related to a physiological disorder. The First Circuit had held in a Rehabilitation Act case that morbid obesity was a physical impairment.

The plaintiff oversaw a day care program for children. When hired, she weighed more than 400 pounds; when terminated eight years later, she weighed 527 pounds.  She died while her discrimination charge was pending; the EEOC filed this suit on behalf of her estate.

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Some call obesity the next smoking, meaning that now that employers have had a multi-faceted attack on reducing health costs related to smoking, they will move on to obesity.  The CDC reports that about 34% of U.S. adults are obese, while about 20% of adults smoke. The rate of obesity has been growing rapidly, while the number of smokers has been declining. The annual healthcare costs related to obesity exceed that of smoking.  This focus on obesity leads ineluctably to concerns of “weight discrimination.  

Michigan’s Elliot-Larson Civil Rights Act explicitly bans weight discrimination, but a recently filed case illustrates that weight discrimination does not necessarily have anything to do with obesity.

In Cassandra Marie Smith v. Hooters of Roseville, Inc. and Hooters of America, Ms. Smith alleged she was 5’8”, 145 pounds when Hooters hired her, but two years later, when she weighed 12 ½ pounds less, her employer advised her to join a gym “to lose weight and improve her looks so that she would fit better into the extra small-size uniform.” She alleges that she was placed on 30 day “weight probation” and was constructively discharged that same day “because she was unable to meet the Hooters’ discriminatory and illegal requirements of a ‘Hooters Girl’.” 

Ms. Smith alleges that no one had medical training or other information upon which to base a decision to place her on “weight probation,” that her weight was within the medically acceptable range, and that no one explained the proper fit of the uniform or the degree of “thinness” which would satisfy her employer.  

She claims that being told that she would lose her job because she was not the correct weight is “per se” weight discrimination and that the weight requirement for female employees is per se gender discrimination. She also claimed that her employer’s telling her co-workers that she had been placed on “weight probation” and “giving her an ultimatum to change her appearance and weight in an unrealistic manner,” among other things, intentionally caused her emotional distress,

The Smith case is an anomaly in that the handful of discrimination cases based on weight do not deal with a plaintiff “within range.” What Smith establishes is that weight discrimination and obesity discrimination are two different legal claims. 

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Citing research from the Centers for Disease Control and Prevention, on June 5, 2010, the New York Times reported that one in five women are obese when they become pregnant.  The article states "obesity might be contributing to record-high rates of Caesarean section and leading to more birth defects and deaths for mothers and babies." 

As well illustrated in the NYT piece, the impact on mothers and their families can be heart-wrenching.  But one back story may be the impact on health care costs.  These are pretty eye-opening statistics ... the kind that often prompt employers to expand their commitment to wellness programs.  

The pregnancy/obesity risk raises some interesting questions.  First, to effectively combat the risk, it would seem as though wellness efforts would need to target women of child-bearing age.  Such a program does not appear to raise risks under HIPAA or the Americans with Disabilities Act because the program would not be based on a factor related to health.   Rather, it would be based on a combination of age and gender. Would this distinction open the door to claims of age or gender discrimination?  

It might depend on how a program was structured.  Ideally, employers would provide "incentives" or "rewards" for women of child-bearing age if they maintained a healthy weight.  This would seem to dodge the gender discrimination issues that drove the Supreme Court's landmark decision in UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).  In Johnson Controls, the Court held that Title VII, as amended by the Pregnancy Discrimination Act, forbids sex-specific fetal-protection policies.  But Johnson Controls involved a policy of refusing to employ all women, except those whose infertility was medically documented, in jobs creating potential serious health risks to any fetus carried by a female employee.  Wellness programs properly implemented would provide more favorable treatment to women in this category.

Something for employers to think about as they search for programs that address important social issues that also impact their bottom lines.

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As the ADA's 20th anniversary nears, let's revisit one of its lofty goals: to place a sweeping federal blanket over the patchwork of state and federal laws that protects individuals with disabilities.

A recent Second Circuit opinion leaves no doubt that the patchwork lives on  In Spiegel v. Schulmann, decided on May 6, 2010, a karate instructor claimed his employer fired him because he was obese due to a medical condition. According to the decision, he weighed 300 pounds and his employer told him that he was not be a good role model due to his weight.

The plaintiff sued for disability discrimination under the ADA, the New York State Human Rights  Law, and the New York City Human Rights Law.  The Second Circuit affirmed summary judgment for the employer on the ADA claim. The district court had held that even if obesity were an impairment under the ADA, plaintiff did not produce any evidence to suggest his obesity makes him “unable to perform a major life activity or significantly restricts the condition, manner or duration in which he can perform a major life activity.”  

The New York Human Rights Law protects those with conditions which prevent “the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques,“ a definition broader than the ADA’s. The Second Circuit affirmed summary judgment for the employer on the state claim, holding that weight is not a “disability” under that law unless the plaintiff produced evidence that he was medically incapable of meeting the employer’s weight requirements, which the plaintiff here did not produce.  

The New York City Human Rights Law’s definition of “disability” is even broader than the state’s, defining disability as “any physical, medical, mental or psychological impairment” of any system of the body. Since no state appellate court has decided whether obesity is a disability under the NYCHRL, the Second Circuit remanded the case to make this determination. 

One termination, three disability laws, three “disability” definitions and three different analyses…. sounds like the patchwork is alive and well. Employers assessing disability discrimination risk must consider all pieces of this patchwork to identify state and local laws offering broader protection than the ADA..

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