Obesity Discrimination in the Workplace

By Alison Dearden

According to the Centers for Disease Control and Prevention (CDC), more than one-third of U.S. adults (35.7%) are obese. Of these adults, many complain that they have been discriminated against in one way or another on the basis of their obesity. When employers discriminate against an obese employee, are they breaking the law?

There is no federal statute that identifies obese individuals as a protected class. Michigan is the only state that explicitly prohibits discrimination in the workplace on the basis of a person’s weight. Several U.S. cities have enacted similar laws including Madison, Wis.; Urbana, Ill.; Santa Cruz, Calif.; San Francisco; Binghamton, N.Y.; and Washington, D.C.

Nevertheless, employees across the country have alleged disability discrimination based on weight, and some federal courts are beginning to treat severe or morbid obesity as a disability under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”). The Equal Employment Opportunity Commission ("EEOC") has also indicated a willingness to prosecute such cases. Most cases the EEOC chooses to fight are filed on behalf of morbidly obese people who were fired from their jobs despite the fact that they could still perform their duties.

In one such case, the employee weighed 527 pounds at the time of her termination. She filed a charge of discrimination with the EEOC, alleging that she had been terminated because her employer regarded her as disabled due to her obesity. During the litigation, the court denied both of the employer’s motions for summary judgment holding that severe obesity is an impairment within the meaning of the ADA, and that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder.

Soon, morbidly obese employees may be able to allege that they have a disease, and, accordingly belong in a protected class. This is because the American Medical Association (AMA) officially recognizes obesity as “a disease requiring a range of medical interventions to advance obesity treatment and prevention.” The decision to recognize obesity as a disease carries no legal authority; however, the decision could influence policymakers as they are faced with pressure from constituents to add obesity as a protected category.

Employers can avoid lawsuits by actively communicating with employees. Requests for accommodations from obese employees should be treated the same as a request for an accommodation from an employee with a disability. Additionally, employers would be wise to create wellness programs to help employees avoid and/or overcome obesity. A wellness program could include stress management, health screenings, fitness programs, health education, on-site gyms, and intramural athletics. Who knew avoiding lawsuits could be so fun?