"> New Challenges for Employers – Obesity and the Workplace - Fineman, Krekstein, & Harris

New Challenges for Employers – Obesity and the Workplace

DRI Covered Events

Over the last several years, it has become clear that America is in the grips of an obesity epidemic. Ubiquitous fast-food chains stand on every street corner and American consumers, starving to make the most out of their pay, often turn to low-priced and unhealthy meals for daily nourishment. Unfortunately, this has led to an increase in “morbid obesity”, as well as an increase in obesity-related diseases, such as diabetes and heart disease, amongst Americans. Not surprisingly, employers are now struggling with their treatment of obese employees.
First, without well-settled law on the topic, employers question whether obesity is a disability which requires reasonable accommodations under the Americans with Disabilities Act (“ADA”), and more recently the Americans with Disabilities Act Amendments Act (“ADAAA”).  Second, employers striving for healthy work places, face challenges to the legality of practices and/or policies which bar obese applicants from obtaining employment.  However, a recent ruling by the Eastern District of Louisiana, and new regulations propounded by the Equal Employment Opportunity Commission (“EEOC”) under the ADAAA, indicate a shift toward the view that obesity does constitute a disability.
In the past, most courts rejected claims that obesity constitutes a disability under the ADA.  For instance, the court in Hill v. Verizon Maryland, 2009 U.S. Dist. LEXIS 59786 (D. Md. 2009), noted that the U.S. Court of Appeals for the Fourth Circuit recognized that “a claim based on obesity is not likely to succeed under the ADA.”  The court also noted that many circuit courts require that “obesity be a symptom of an underlying physiological condition in order to constitute a disability.”  Similarly, recently, the court in Lescoe v. Pennsylvania Dep’t of Corrections, 2012 U.S. App. LEXIS 3022 (3d Cir. Feb 16, 2012),  upheld the dismissal of a discrimination claim made by a morbidly obese corrections officer trainee who claimed that his employer failed to reasonably accommodate his disability (obesity) which adversely affected his ability to stand during his shift.   In dismissing the claim, the court noted that the Third Circuit “has not yet definitively reached a position regarding whether obesity is a disability under the ADA,” but found that the plaintiff, who had passed numerous medical and physical examinations, failed to  establish that any major life activity was adversely affected by his weight.

In contrast to these cases, however, in December 2011, the U.S District Court for the Eastern District of Louisiana held, in E.E.O.C. v. Resources for Human Development, 2011 U.S. Dist. LEXIS 140678 (E.D. La. 2011), that severe obesity does qualify as a disability under the ADA.  In that case, the EEOC filed a lawsuit on behalf of Lisa Harrison, a morbidly obese woman who, prior to her termination, worked as a “Prevention/Intervention Specialist” for the defendant agency.   The EEOC claimed that the defendant fired Harrison, who was 5’2″ and weighed more than 500 pounds when she was terminated, because it regarded her as disabled due to her obesity.  Interestingly, just three months prior to the termination, Harrison received an evaluation rating her performance as “excellent” in seven of 12 areas, including quality of work.

The court noted that obese employees have pursued claims under the ADA with mixed results, since the ADA does not specifically address obesity and no federal law prohibits obesity discrimination.  Further, the court acknowledged thatc ourts addressing this issue in the past disagreed about whether an employee must establish that his or her obesity: (1) is the result of an underlying physiological disorder and (2) substantially limits a major life activity.  The court found that, to succeed in proving that Harrison had a disability first, the EEOC had to show that she: (1) had a physical or mental impairment that substantially limited one or more major life activities; (2) had a record of such impairment or (3) was regarded as having such impairment.  Once the EEOC satisfied this component of the analysis, it would be required to show that Harrison was qualified to perform her job and suffered an adverse employment decision because of her actual, recorded or perceived disability.

In finding that Harrison had a physical impairment, the Court relied on the EEOC’s interpretive guidelines which state that, while being overweight, in and of itself, generally is not an impairment, “severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.”  The Court then concluded that “severe obesity is a disability under the ADA and does not require proof of a physiological basis for it.”  Rather, a physiological cause is required only when an employee’s weight is within normal limits.  The Court noted that Harrison’s severe obesity, either as it actually existed, or as the employer perceived it, was a substantially limiting impairment under the ADA. The court then turned to the second portion of the analysis and found sufficient evidence that Harrison’s employer regarded her as disabled.  Also, the court found that a genuine question of fact existed as to whether Harrison was fired because of her weight.

The court’s ruling in Resources for Human Development indicates a trend towards an expanded view of the definition of “disability” under the ADA.  However, the foregoing cases were all decided under the ADA, not the ADAAA.  The ADAAA made it easier to establish a “disability” within the meaning of the ADA by permitting the EEOC to broadly interpret the scope of the term “disability.” In fact, the new regulations provide specific rules of construction when determining whether an impairment “substantially limits” an individual in a major life activity and notes that “substantially limits” is not a demanding standard.

Because the Resources for Human Development decision was made under the more narrow definition of “disability” found in the ADA, it is likely that other courts that have traditionally sided with employers on whether obesity is a disability under the ADA, might now find that obesity is a disability under the ADAAA’s broader definition.  Considering these decisions, it is very likely that employers will see an increase in the number of EEOC charges and lawsuits filed by obese employees, regardless of whether the old or new law applies.

In addition, the Resources for Human Development opinion, as well as the ADAAA’s broader definition of “disability,” call into question employer practices and/or policies which bar obese applicants from obtaining employment.  Recently, for instance, a Texas hospital instituted a policy which restricted the applicant pool to individuals with body mass indexes less than 35.  In support of the policy, the hospital stated that obese applicants did not “fit with a representational image…of the job of a health care professional.”  See “Victoria Hospital Won’t Hire Very Obese Workers,” Texas Tribune, March 26, 2012.

The Texas hospital policy referenced above is just one example of a practice or policy implemented by an employer apparently to prevent the employment of obese employees. Employers should be aware that there are risks associated with implementing such policies.  At a minimum, because of the shift in the law outlined above, such policies will likely gain increased attention and scrutiny the EEOC.

In addition, the Resources for Human Development decision should serve as notice to employers that an employee need not have an actual disability to be protected by the ADA and/or ADAAA.  Even when an employee is not limited in his or her ability to perform major life activities, an employer may violate the ADA if it regards the employee as disabled and discriminates against him or her based on this erroneous perception.  Employers should avoid making assumptions about employees who are obese, but are actually capable of performing their jobs.

The possibility of increased employee lawsuits and EEOC charges filed by obese employees also raises insurance coverage concerns for many employers.  An employer sued for violating the provisions of the ADA might tender its defense to its liability insurer. A general liability policy, however, will not typically provide coverage for an ADA claim. First, ADA claims oftentimes fail to allege “bodily injury” or “property damage” within the meaning of a liability policy. More important, intentional conduct, including intentional discrimination based on a person’s disability, is not covered by liability policies. Finally, even if an ADA claim alleges a “bodily injury” or “property damage” arising from accidental conduct, coverage is often barred by a policy’s employee exclusion or employment-related practices exclusion.

Employment practices liability insurance (EPLI) will likely provide coverage, subject to the terms and exclusions of the policy.  Nevertheless, employers should not rely solely on employment practices liability insurance. Rather, employers should be cautious about their practices with regard to obese employees, and strive for healthier workplaces through the use of company-backed health initiatives.  In addition, as a precaution, employers should strive to provide reasonable accommodations to obese employees, wherever possible.