July 28, 2013

Obesity in the workplace becomes a bigger deal

Obesity's reclassification as a disease means employers had better give less weight to a person's girth in hiring or firing.

By DIANE STAFFORD McClatchy Newspapers

Ignore an obese employee's request for a larger desk chair, and prepare to be sued for violating disability accommodations law.

click image to enlarge

Employees who are obese are now more likely to be recognized as disabled with rights under the 2008 amendments to the ADA.

The Associated Press

Don't hire an overweight woman because she doesn't fit your corporate sales image, and face a possible discrimination lawsuit.Call your employee "Fatty" instead of his name, and open up your company to harassment charges.

A decision this summer by the American Medical Association to classify obesity as a disease, instead of a condition, has heightened concerns among employment law officials about such possible workplace outcomes.

Employees who are obese -- possibly as few as 30 pounds over recommended body weight for their height, age and sex -- are now more likely to be recognized as disabled with rights under the 2008 amendments to the Americans with Disabilities Act.

That can be a big, costly deal, given that one-third of American adults are classified as obese, on top of another one-third considered overweight. The U.S. obesity rate jumped nearly 50 percent from 1997 to 2012, according to the Centers for Disease Control and Prevention.

"Recognizing obesity as a disease will help change the way the medical community tackles this complex issue," AMA board member Patrice Harris said in a statement explaining the reclassification.

The physician group's new definition of obesity doesn't in itself have any force of law, "but there's a high probability it will make it easier for an obese employee to argue that he or she is disabled," said Myra Creighton, a partner at Fisher & Phillips who specializes in advising employers about their obligations relative to workers with disabilities.

"It may be easier for employees to prove disability discrimination," Creighton said. "And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment."

Disability law says an impairment is something that affects a major life activity or body function -- and that could include walking or sitting.


A portent of things to come emerged in a lawsuit settled last year after the Equal Employment Opportunity Commission had sued a BAE Systems subsidiary in Houston for disability discrimination. The commission had charged that the company regarded an employee as disabled and fired him because of his obesity even though he could perform his job.

To settle the case, the company agreed to pay the fired worker $55,000 and cover his outplacement services, train managers in disability law compliance, and post anti-discrimination notices in the workplace.

Studies have long confirmed a "beauty bias" -- a tendency for employers to hire and promote attractive people over less comely ones. That bias includes a tacit preference for trim people over fat ones.

But such bias is nearly impossible to prove in a discrimination lawsuit. And obese workers, with extremely limited exceptions, have never had any specific anti-discrimination protections by law.

The AMA's reclassification of obesity as a disease sparked conjecture that that will change.

Creighton's advice: "Employers should avoid any suggestion that the employee's weight suggests the employee cannot do a particular job."


Employment law attorneys and human resource officials now are watching to see if the EEOC expands its definition of a disability beyond its current "morbidly obese" distinction. That generally means someone weighs twice the normal body weight.

"Even if the EEOC does not rush to expand the definition of disability, employers should be aware that overweight employees may still be protected under the ADA," Shannon Morales and Elizabeth Rudnick wrote in a legal post on Lexology.com.

Under federal disability law, even if employees aren't morbidly obese and aren't limited in life functions, they still may qualify as protected by law if the employer "regards" them as impaired.

(Continued on page 2)

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