According to the American Medical Association, approximately one in three Americans is obese, and the trend is on the rise. Obesity has not traditionally been considered a “disability” under disability discrimination laws, such as the Americans With Disabilities Act (ADA) and the California Fair Employment and Housing Act. Employees and applicants therefore have not been protected from discrimination based on weight alone; employers have not been obligated to provide weight-related accommodations. But the recent expansion of disability discrimination laws and other social factors have spurred a trend toward recognizing obesity as a disability. This change will increase the numbers of individuals in the workplace with disabilities who will be entitled to reasonable accommodation.

Evolution of Disability Discrimination Law

Courts generally have not found obesity to be a disability in and of itself. But health problems associated with obesity, such as cardiovascular disease and type 2 diabetes, generally have been considered disabilities if they limit major life activities. Also, disability discrimination laws have protected individuals who are “regarded as” disabled, meaning it has always been illegal for an employer to discriminate because of a perception that a person has a disability.

The Americans With Disabilities Amendments Act, which became effective in 2008, significantly expanded the definition of disability. Since then, the Equal Employment Opportunity Commission (EEOC), the federal agency that administers the ADA, has taken the position that obesity, on its own, is a disability under the broader definition. In April 2012, the EEOC settled a case with an employer who fired an employee allegedly because she was severely obese. A few months later, the agency resolved another case against an employer, which had fired an employee because it claimed his morbid obesity made it impossible to do his job. And even more recently, the EEOC amended guidance that stated obesity on its own is not a disability.

The courts, too, have followed the trend. For example, in one of the cases above, a federal district court in Louisiana rejected the employer’s summary judgment motion because it determined that severe obesity is a disability. Similarly, the Montana Supreme Court recently held that obesity can be a disability.

At the same time, renewed social focus has brought this issue into the spotlight, from the first lady’s focus on the subject to the American Medical Association’s new position that obesity is a disease. Even employers who attempt to address the issue proactively find themselves subject to negative attention. For example, last year Whole Foods faced public criticism for giving an increased employee discount to employees with a healthy body mass index (BMI).

Understanding an Employer’s Obligations

This area of law is by no means settled (last month the West Virginia Supreme Court held that obesity, on its own, is not a disability under that state’s laws). Employers must be prepared for continued changes and challenges in this area. Of course, employers risk potential liability for discrimination-making adverse employment decisions-against individuals based on obesity. But additional issues require employers to navigate carefully.

First, an individual must be able to perform the essential functions of the job with or without reasonable accommodation. If an employer excludes an employee or applicant because he or she is obese, the decision should directly relate to the individual’s ability to perform the specific job duties. Consequently, in most cases, an employer should not make assumptions about ability based on obesity, and instead should focus on specific physical capabilities (e.g., lifting, bending, etc.), which obese individuals may or may not have the ability to perform. To ensure a successful applicant can perform the essential functions, an employer may also consider requiring the applicant to undergo a medical examination-but only if it requires all applicants in the job classification to do so. Such examinations also must be post-offer, and the final step in the hiring process.

Second, employers in certain industries must recognize that customer preference often is not an adequate justification for negative treatment. Because obesity (accurately or not) is often correlated with health-related problems, some employers may wish to take the position that certain jobs-for example, a physical fitness instructor or nutritionist-should not be filled by obese applicants because of customer preference or perceptions. Employers may defend otherwise discriminatory practices when “reasonably necessary to the normal operation of that particular business” (called a “bona fide occupational qualification”). But this defense is not available under disability discrimination laws. Instead, employers must show that any selection tool is job-related and consistent with business necessity, a more difficult standard to meet.

Finally, the obligation to reasonably accommodate obese employees will likely have the greatest day-to-day impact for employers. Employers are required to engage in an “interactive process”-an ongoing dialogue about what the particular employee needs to perform the essential functions of the particular job. With increased recognition that obesity alone is a disability, there will be a greater need to consider and implement accommodations. Some examples could include changes to physical facilities-such as larger chairs, altering cubicles, etc.), or transferring non-essential job functions that an obese employee cannot perform. As with other disabilities, an employer need not relax its performance standards or remove essential job functions. The issue will be whether an obese employee can perform those essential job functions with an appropriate reasonable accommodation that does not cause the business undue hardship.

The area of disability discrimination law continues to vex employers as it evolves. Employers should always seek competent advice before making decisions about reasonable accommodations, undue hardship, and what qualifies as a disability.

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