04-01-2004
In September 2000, Joseph O’Connor was offered a job as a cook at a McDonald’s restaurant in Hamden, Connecticut. Mr. O’Connor gave the restaurant manager his waist size (54”) and shirt size so that an order for his uniform could be placed. Mr. O’Connor was told that he would be called once his uniform arrived. When he had not heard from the restaurant after three days, Mr. O’Connor called to check on the status of his uniform. He was told that the uniform had not yet arrived. He called again in October and was again told that his uniform was not in. Over the next three months, Mr. O’Connor visited the restaurant several times and saw that new employees had been hired and a “help wanted” sign had been posted. Although Mr. Connor was repeatedly assured that someone would be in touch with him, he was never contacted by the restaurant or told why he was not permitted to start working. Mr. O’Connor sued under the Americans with Disabilities Act (ADA), claiming that McDonald’s failed to allow him to start working because it regarded him as being “morbidly obese.”
Would someone like Mr. O’Connor be able to win his case? The discussion below will answer this and other questions on the application of the ADA to obese and morbidly obese individuals, concluding with practical advice on how to legally and effectively manage overweight employees.
I. Obesity in the United States
In the medical community, “obesity” is generally said to be present in women with more than 30 percent body fat and men with more than 25 percent body fat.1 “Morbid obesity,” a more serious condition still, occurs when a person is 50-100 percent or 100 pounds above his or her ideal body weight or has more than 39 percent body fat.2 Medical problems commonly associated with morbid obesity include diabetes, hypertension, heart disease, stroke, certain cancers (including breast and colon cancer), depression, and osteoarthritis.3
Obesity among the American population is a serious epidemic. The results of a 1999-2000 National Health and Nutrition Examination Survey indicate that an estimated 64 percent of U.S. adults are either overweight or obese.4
II. Obesity Discrimination in the Workplace
There is little doubt that obese individuals suffer workplace discrimination. A summary of twenty-nine laboratory and field studies published by the American Obesity Association, for example, shows that overweight persons are subject to discrimination in performance appraisals and other employment decisions based on body weight and they are stereotyped as emotionally impaired and possessing negative personality traits.5 Studies have found that the wages of morbidly obese white women are 24.1 percent lower that their standard weight counterparts.6 The studies also suggest that discrimination based upon weight is far more common than discrimination based on personal characteristics such as sex.7 For example, one study found that applicant weight explained 34.6 percent of the variance in hiring decisions, whereas sex explained only 10.6 percent of the variance.8 Another study found that people display more negative attitudes toward overweight employees than toward ex-felons or ex-mental patients.9
III. Obesity in the Law
But what protections does the increasing percentage of obese workers have against workplace discrimination? May employers legitimately make employment decisions based on a person’s weight, assuming that maintaining a certain weight is not a bona fide occupational qualification? What responsibility do you have to provide a workplace free of weight-based discrimination and harassment?
The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, which was passed in 1990, bars discrimination based on disability and requires that employers provide a reasonable accommodation in the workplace to qualified individuals with a disability.10 To be considered a person with a disability under the ADA, an individual must have: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) be regarded as having such an impairment.”11 In other words, to enjoy the protections of the ADA, a person must show that he or she has a current disability, had a disability in the past, or is regarded by an employer as having a disability.
A. Obesity Is Generally Not a Disability Covered by the ADA, but Morbid Obesity Is
The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. Even if an obese person has difficulty performing the normal daily functions of living and working, he or she will not be considered disabled under the ADA unless the obesity “substantially limits” a major life activity.12 “Major life activities” can include everything from “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and [even] working.”13
The allegedly disabling condition must usually be a bona fide medical or psychological condition. The Equal Employment Opportunity Commission’s ADA regulations clearly state that, absent “exceptional” circumstances, obesity does not meet the definition of a disability under the ADA.14 result of a physiological impairment, being obese will probably not result in ADA protection. This means that obese people who are treated differently based upon their appearance alone will not enjoy the protections of the ADA.
However, the EEOC and courts have consistently included the more serious condition of “morbid obesity” within the definition of “disability” under the ADA. EEOC guidance documents clearly state that “morbid obesity” could be a protected disability as defined by the ADA, and federal courts have included “morbid obesity” within the category of medical conditions that impair major life activities. Thus, unless an individual who is just obese can show that his or her obesity is the
B. Obese Employees Have Successfully Made “Regarded as” ADA Claims
As explained above, the ADA protects employees and applicants from discrimination based not only on actual disabilities, but also on the employer’s perception that they are disabled. EEOC regulations outline three circumstances in which a person could make an ADA claim based on being “regarded as” having an impairment:
(A) Is regarded as having such an impairment means:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in paragraph (h) (1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.......17
Therefore, if an employer refuses to consider an obese applicant for a job because of a perception that the person’s obesity will interfere with his or her ability to perform the job, then the failure to hire may constitute discrimination under the ADA. Note that, in this case, the person would not need to be morbidly obese, but simply be a seriously overweight person regarded as having some sort of physiological impairment (includingmorbid obesity) that, in the eyes of the employer, would prevent them from doing his or her job.
In the case discussed in the introduction to this article, the federal district court in Connecticut refused to dismiss Mr. O’Connor’s claims, ruling that his allegations—that “McDonald’s regarded his as morbidly obese, that morbid obesity may qualify as a physical disability under federal law, and that McDonald’s refused to hire him because it perceived him as substantially limited in the major life activity of working due to his morbid obesity”—were sufficient to maintain an ADA claim.18
As well, in Warner v. Asplundh Tree Expert Co.,19 the same federal district court refused to dismiss a morbidly obese plaintiff’s claim that he had been discriminated against because his employer regarded him as disabled based upon his weight.
Warner's complaint pleads, inter alia, that he has “morbid obesity”; that the defendant regarded him as “‘an individual with a disability,’ within the meaning of the Act”; that Blevins told Warner's former co-worker that the plaintiff was laid off because he was “overweight” and was “going to die on [his] job site”; and that the plaintiff’s perceived disability was a “substantive factor” in the defendant’s decision to terminate and not rehire him. This, and the accompanying facts, are more than sufficient to state a claim for relief . . . . 20
Accordingly, obese employees and applicants have sometimes been able maintain claims that, although they were not actually disabled, they were regarded as being disabled by an employer—i.e. having an impairment, including morbid obesity, that limits major life activities—and are therefore entitled to ADA protection.21
Nevertheless, if a weight requirement is directly related to the essential requirements of the job, then an employer may have a defense in this sort of case.22
C. Obesity-Related Conditions May be Protected by the ADA
Also note that, although an employee may not enjoy ADA protection because of his or her weight, that person may suffer from serious health conditions that would nonetheless bring them within the ADA. For example, as explained above, morbidly obese people often suffer from health problems such as diabetes, hypertension, heart disease, stroke, cancer, depression, and osteoarthritis.23 In fact, the EEOC has noted in its guidance on the definition of disability under the ADA that “a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder, [which] is an impairment.”24 Employers are therefore well-advised not to immediately discount an obese employee’s request for an accommodation simply on the basis that the person’s obesity is not a condition protected by the ADA.
D. State and Local Laws May Contain Additional Protections for Obese Employees
As you consider issues of weight discrimination in your workplace, be sure to keep the impact of state and local laws in mind. Although Michigan is the only state that has enacted a prohibition against weight discrimination,25some municipalities have enacted ordinances barring weight and personal appearance discrimination. For example, Washington, DC prohibits discrimination based on personal appearance,26 and ordinances passed in such cities as San Francisco bar weight and personal appearance discrimination.27 Also note that the disability discrimination laws of some states may contain a broader definition of disability than the ADA, which may encompass obesity.
IV. Best Practices for the Employer
In light of the above considerations, here are some practical tips for employers to keep in mind in managing overweight employees:
- Provide managers with at least a basic understanding of the ADA and all relevant state and local laws.
- Review job descriptions to make sure that any weight requirements are reasonably related to the essential requirements of the job.
- Do not create “regarded as” disabled claims by making assumptions about what job functions overweight employees can and cannot accomplish.
- Treat requests for accommodation from overweight individual with delicacy and sensitivity, keeping in mind that obesity is often accompanied by health impairments that may entitle an employee to ADA protection.
- Develop internal policies that mandate the courteous treatment of all employees, regardless of personal appearance.
- Educate all employees—especially managers—on what is inappropriate, unprofessional, or illegal conduct toward overweight employees.