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Morbid Obesity as a Covered Disability under the ADA

By David M. Katz

Almost two years ago, we wrote that the EEOC had filed its first-ever lawsuit asserting that “severe” obesity was a protectable disability under the ADA.   That case, EEOC v. Resources for Human Development, Inc., provided little guidance to employers about where the EEOC would draw the line on when obesity is “severe” enough to constitute an ADA-protected disability.  Although it is still unclear where that line is, it is now clear that the EEOC considers “morbid” obesity” to be a protectable disability under the ADA.

On July 24, the EEOC announced that it settled a disability discrimination lawsuit filed last year against BAE Systems for discrimination against an employee based on his actual or perceived disability, morbid obesity, by terminating his employment, denying him reasonable accommodation, and for otherwise denying him equal employment opportunities within BAE. A copy of the complaint in EEOC v. BAE Systems, Inc.

The employee, Ronald Kratz, II, weighed well in excess of 600 pounds, meaning that  he was morbidly obese (generally characterized by being at least twice the ideal body weight).  Kratz worked as a material handler in BAE’s manufacturing location outside Houston, where 90% of his job consisted of desk work and the remaining 10% was performed standing up or driving a forklift.  After being instructed to wear a seatbelt while driving the forklift, he asked for a seatbelt extender.  He did not receive the extender; instead, he was terminated two weeks later because, according to BAE, he could no longer do his job due to his weight.

As part of the settlement, Kratz received $55,000.In addition, BAE must provide Kratz with six months of outplacement services, and must conduct training for, and issue written guidance to, BAE’s managers and human resources professionals on EEO compliance, disability discrimination law and responsibilities regarding reasonable accommodation to employees and applicants.  The company must also post an anti-discrimination notice in multiple locations.

The EEOC's position that morbid obesity is a “disability” under the ADA may well find support in the ADA Amendments Act of 2008 (ADAAA).  The ADAAA retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment.  However, the ADAAA significantly expands the definition of "substantially limits" and "major life activities," thereby increasing the likelihood that morbid obesity (or for that matter even “severe” obesity or, perhaps, even “moderate” obesity) constitutes a federally protected “disability.”  In addition, under the ADAAA’s revised definition of “regarded as,” an employee no longer must establish that the employer perceived him or her to be substantially limited in a major life activity. The employee need only demonstrate that the employer took a prohibited adverse action based on its belief that the employee had an actual or perceived impairment, without regard to whether that condition was perceived to substantially limit a major life activity.

The lesson: Because morbid obesity—and perhaps even obesity—may be considered a “disability” under the law, employers should tread lightly when making employment decisions based on an employee's weight or when making decisions that detrimentally impact overweight employees.  The same goes for any other “non-traditional” impairment, which, much to employers’ surprise, may also be considered a “disability” under the ADAAA’s expanded reach.

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Martha Zackin