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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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