Obesity Discrimination Issues

EEOC’s position in past years was that simply being overweight generally was not an impairment covered by the Americans with Disabilities Act, but when the ADA was amended (into the ADAAA), EEOC retreated from this position—unfortunately, the Commission hasn’t spelled out what its new position is.  We do know that EEOC always has believed and still does believe that so-called morbid obesity (sometimes described as twice normal body weight), even absent any related physiological disorder, can be a protected disability requiring reasonable accommodation under the ADAAA.  A physiological disorder, of course, can in and of itself be a covered disability, so we would assume that less-than-morbid obesity, with a physiological disorder, can be a protected disability, at least to the EEOC.  However, the courts have been gone in various directions on such issues.  Recently, the 8th Circuit Court of Appeals held that, absent a related physiological disorder, even morbid obesity—in and of itself—is not an ADAAA disability.  The 6th Circuit (which covers Tennessee) and the 2d Circuit reached similar conclusions, but their cases were decided before the ADAAA was signed into law—so, it is unclear that these Circuits would reach the same conclusions today.  In recent years, a district court in north Mississippi held that a physiological disorder is not necessarily required to establish an obesity disability under the ADAAA.  So, for now, we’re all watching court cases to hear whether simply being overweight, even in the absence of a physiological disorder, can be a protected disability under the ADAAA—watch the newspapers!

Many employers today view this issue with concern; thus, most will assume (without admitting) that a seriously obese individual has a protected disability—therefore, the employer will try to reasonably accommodate the person’s obesity-related restrictions and limitations.

    Jeff Weintraub, Attorney at Law