Trend: Employment Lawsuits Based on Obesity Discrimination

The problem of obesity in the U.S. has been well documented. According to a survey done by the Centers for Disease Control and Prevention, approximately one-third of the adults in the U.S. (33.8%) are obese. The survey found that no state had a prevalence of obesity less than 20%. Thirty-six states had a prevalence of 25% or more, while 12 of these states (Alabama, Arkansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia) had a prevalence of 30% or more.

Although BMI correlates with the amount of body fat, it doesn't directly measure body fat. As a result, certain individuals — for example, athletes — may have a BMI that identifies them as overweight, even though they do not have excess body fat.

The issue also has an economic effect. A study by Cornell University found that obesity accounts for almost 21% of U.S. health care costs — more than twice the estimates from previous studies. Other studies have found that obesity means higher costs for employers in Workers' Compensation and absenteeism costs.

Not surprisingly, the impact is also being felt in the workplace in other ways. The Equal Employment Opportunity Commission (EEOC) states that weight discrimination has become almost as common as discrimination relating to race, gender or age. If an employer engages in hiring and firing practices based on a person's weight, it could be held liable under the Americans with Disabilities Act (ADA).

However, the mere fact that an employee is obese does not automatically afford protection under the law. The EEOC generally maintains that the ADA covers only "morbid obesity" (defined as body weight more than 100% over the norm) or obesity caused by a physiological disorder (see below).

Of course, employees may file claims against employers, even if they don't measure up under the EEOC guidelines. In the past, lawsuits alleging weight discrimination have been initiated in the following situations:

• Employees have medical conditions relating to weight such as diabetes, heart disease or hypertension. In these cases, the employee may be protected by the ADA, regardless of the degree of the condition or the cause of the obesity.
• A company imposes a weight standard based on an employee's gender. In a landmark case, the court ruled that an airline's weight-limit requirement was discriminatory because the maximum weights for females were lower than the maximum weights allowed for males (Frank v. United Airlines, Inc., 9th Cir., No. 98-15638, 2000).
• An employer uses assumptions or stereotypes to make decisions. Although the ADA excludes individuals who pose a direct threat to the health or safety of themselves (or others), don't assume a threat exists for obese, or even morbidly obese, people. Based on medical evidence, an employer must establish that there is a significant risk that substantial harm could occur if the employee were to carry out the essential functions of the job.

How Is Obesity Defined?

Obesity is the term used for a range of weight that is greater than what is generally considered healthy for a particular height. It also identifies the ranges of weight that have been shown to increase the likelihood of certain diseases and other health problems.

For adults, obesity ranges are determined by using weight and height to calculate the "body mass index" (BMI). The range distinguishes someone who is obese from an individual who is overweight.

See the chart below for an example.

What Employers Can Do to Help

An employer may want to, or feel a responsibility to, help reverse the trends stated above. One idea is to institute a weight reduction program while encouraging a healthier environment at work. For example, your business might stock vending machines with nutritious snacks and bottled water instead of carbonated soda and candy. You can also include nutritional information with cafeteria selections and set out healthy snacks such as fruit and low-fat yogurt rather than doughnuts or pastries at meetings and other employee events.

Here are some other suggestions:

• Discourage eating at desks. A walk to the cafeteria or lunchroom can be helpful.
• Support physical activity breaks during the workday.
• Encourage staff to use stairs by placing signs near elevators and stairwells highlighting the benefits. Ensure that stairways are accessible and are properly lighted.
• Encourage employees to take walks outside during their lunch hours.
• Sponsor contests rewarding those who lose a certain amount of weight during a specific time period.
• Set up a workplace wellness program to assist employees in adopting healthy lifestyles.
• Provide educational material on the health risks of being overweight and how to eat healthier. Your company's health plan provider can help with this and other health-education material.
• Provide employee assistance programs for private counseling or community-based weight management programs.

In all cases, be sensitive to employees when addressing issues related to their weight. Showing that you care enough to provide a healthy working environment can engender a strong sense of loyalty among your staff.

Relevant Cases

Employer settles obesity case. In April 2012, a Louisiana treatment facility for chemically dependent women and their children, agreed to pay $125,000 to settle a disability discrimination suit filed by the EEOC.

The court-approved settlement resolves the charge of an employee who worked as a prevention / intervention specialist at Resources for Human Development Inc.'s Family House facility. In its suit, the EEOC charged that RHD violated the Americans With Disabilities Act when it fired the employee because of her disability, severe obesity, even though she was able to perform the essential functions of her job.

The EEOC offered the expert testimony of an obesity researcher that the employee's obesity was the result of a physical disorder or disease, and was not caused by lack of character or willpower. But the court reasoned that "neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment." (EEOC v. Resources for Human Development, Inc., F. Supp. 2d, WL 6091560)

EEOC General Counsel David Lopez said, "it is important for employers to realize that stereotypes, myths, and biases about (obesity) should not be the basis of employment decisions."

Image is everything. In another case, an individual applied for a position as a "sales counselor" at an L. A. Weight Loss Center located in Pennsylvania. At the time, the applicant weighed 350 pounds and fit the description of being "morbidly obese." He was rejected for the job.

Later, the applicant filed a lawsuit under the ADA, alleging that the employer had "perceived or regarded him as being disabled." But the employer argued that it rejected him on the basis of his appearance. It asserted that it was "image conscious" and that the applicant's excessive weight was not compatible with the image it wanted to project to the public.

Result: The District Court agreed that the rejection due to the applicant's appearance did not constitute a violation of the ADA (Goodman v. L.A. Weight Loss Centers, NO. 04-CV-3471, ED-PA, 2005).