Reporting Workplace Obesity Discrimination

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Even though more than one third of the adult population in the U.S. is obese, social and workplace discrimination against obese people is persistent and pervasive. Obese means having too much body fat - not the same as being overweight, which means weighing too much. A person may be overweight from extra muscle, bone, or water, as well as from having too much fat. Both terms mean that a person's weight is higher than what is thought to be healthy for his or her height. Surgery may help people who have been very obese for 5 years or more and have not lost weight from other treatments, such as diet, exercise, or medicine.

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Obesity is medical condition in which a person accumulates excessive body fat to the extent that it may have an adverse effect on health. Obesity is determined by a person's body mass index (BMI) In general, a BMI of 25 to 29 is overweight, a BMI of 30 to 35 is obese, and a BMI of 35 or greater is considered morbidly obese.

According to a recent online Harris Interactive/HealthDay survey, 61 percent of 2,300 individuals polled did not consider negative comments about someone's weight to be offensive, and a quarter of those polled believed that employer policies that discriminate in hiring based solely on a person being obese were "fair."

Additionally, the individuals polled were also asked about their body mass index (BMI), and the results were as follows:

• 32 percent were normal weight,
• 29 percent were overweight,
• 17 percent were obese,
• and 13 percent were morbidly obese.

(Presumably, 8 percent did not respond to the question.)

Approximately two-fifths of the obese and morbidly obese respondents felt they had been shunned socially, and 52 percent believed they had been discriminated against in the job market when applying for a job or promotion. That belief has a basis in reality. For example, a hospital in Texas recently announced that it would not hire people with a BMI higher than 35 - the morbidly obese - due to concerns about personal appearance.

As evidenced by the results of this poll, the obese face an unwarranted and unsubstantiated bias that they are wholly responsible for their condition due to laziness, ignorance and a lack of discipline, when, in fact, genetics play a substantial role in obesity, especially with those morbidly obese.

Filing a Claim under the ADA

In cases of employment discrimination, morbidly obese people can pursue a claim under the Americans with Disabilities Act (ADA) and its updated version, the Americans with Disabilities Amendments Act (ADAAA), which went into effect in January 2009. Those applying, however, must prove they have a disability that was the reason behind the employment discrimination.

Generally, under the ADA and ADAAA, to qualify as someone with a disability, a person must:

• Have a physical or mental impairment that substantially limits one or more major life activity. Main examples include walking, talking, hearing, seeing, listening and caring for oneself
• Have a history of such an impairment
• Be regarded as having such an impairment

The ADA and ADAAA prohibit employers from discriminating on the basis of disability in hiring, firing, pay, job assignments, promotions, and other areas of employment, and they require employers to make "reasonable accommodations" in the work environment or work requirements that enable an applicant or employee to perform a job.

Hope for Obesity Discrimination

Obesity claims under the ADA, unfortunately, are usually met with difficulty, but the success of the recent lawsuit, EEOC v. Resources for Human Development, provides a positive turning point for those with morbid obesity.

The EEOC filed a lawsuit in federal court against Resources for Human Development under the ADA on behalf of a woman. The suit claimed that the defendant fired her illegally based on her obesity. The woman had worked at the facility as a prevention and intervention specialist for eight years and had been rated "excellent" in numerous employment evaluations over the years. She was 5'2" and weighed 400 pounds when she was hired and weighed more than 500 pounds when she was fired.

The main question the court had to consider was whether the EEOC had proven whether the woman was legally disabled either by her having a substantially limiting physical impairment due to her morbid obesity or because she was regarded as having such impairment. If that threshold was met, the EEOC would then need to show that the woman had been qualified to perform her job.

The court concluded that severe or morbid obesity does qualify as a disability under the ADA whether it actually exists or is perceived to exist by an employer.

The success of the suit prompted the EEOC General Counsel to comment that "severe obesity is no exception" to unlawful discrimination, and that "it is important for employers to realize that stereotypes, myths, and biases about that condition should not be the basis of employment decisions."

If you feel you have been discriminated against in the workplace due to severe obesity, seeking out the advice of an experienced disability discrimination attorney who can help you file a claim with the EEOC or the Human Rights Commission is advised.

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