Is obesity a disability under California law? Are a supervisor’s alleged “fat remarks” sufficient evidence of disability discrimination?  On December 21, 2017, a California Appellate Court published an extensive decision regarding obesity as a disability under California law and issued further guidance on both counts.

Ketryn Cornell was an obese woman (5’5”, 350 pounds) who was fired by her employer, Berkeley Tennis Club, after she allegedly planted a recording device attempting to tape record a board meeting. Cornell was employed as a Night Manager, Day Manager and Tennis Court Washer. Cornell alleged among other claims disability discrimination and harassment based on her obesity.

Cornell had been employed by the Berkeley Tennis Club since 1997. She received positive reviews, merit bonuses, and raises until 2012 when she was assigned a new supervisor.  The new supervisor wanted to “change the image of the Club.”

Cornell claimed that she was discriminated against and harassed by her supervisor because he once suggested she undergo weight-loss surgery, told the kitchen staff not to give her extra food because “she doesn’t need it,” and told Cornell “not to eat that.” Additionally, Cornell alleges that she was mistreated when her supervisor required employees to wear uniforms. Cornell asserted that she told her supervisor several times that she needed size 5X-7X and he only provided her with a size 2X shirt. The supervisor subsequently made comments to the Board that Cornell was “resisting policy” by not wearing the uniform. Cornell e-mailed the supervisor and asked that he “understand her special needs/disabilities and help in being accommodating.” The Court found this was sufficient evidence for the discrimination and harassment claims to survive summary adjudication and to proceed before the Court.

Courts have generally found that obesity cannot qualify as a disability unless there is a “physiological cause.” However, the U.S. Equal Opportunity Employment Commission (EEOC) recently deleted language which had provided “except in rare circumstances, obesity is not considered a disabling impairment.”

Here, the Court found that a “physiological cause” could include a genetic cause. And, at summary judgment, it was sufficient for the employee’s doctor to find a genetic cause based on body mass index alone.

Overall, this decision is an important reminder that what constitutes a “disability” under California law is always evolving. In light of this decision, employers should be sensitive to obesity discrimination complaints. Please contact Jackson Lewis with any questions about disability policies or practices.