EPS Senior Consultant • New York/Tri-State Area
Employers can dictate how we perform our jobs, insist we look professional, and ban us from engaging in certain activities at work. How far into our personal lives are employers legally permitted to go? Can an employer tell us how much we should weigh? Can an employer give preferential treatment to thin employees? This newsletter explores the legal questions surrounding the issue of weight discrimination.
I. The Backdrop
Statistics reflect that Americans are continuing to gain weight. According to the Centers for Disease Control & Prevention, the past 20 years have brought a dramatic increase in obesity, which is typically defined by the medical community to mean greater than 30% body fat for women and more than 25% body fat for men. “Morbid obesity” occurs when a person is 50-100% or 100 pounds above his or her ideal body weight or has more than 39% body fat. To put it a different way, you are overweight if your Body Mass Index (BMI) exceeds 26, obese if it exceeds 30, and morbidly obese if it exceeds 40. Medical problems commonly associated with obesity include diabetes, hypertension, heart disease, stroke, certain cancers, depression, breathing difficulties during sleep, and osteoarthritis. Employers foresee (rightly or wrongly) and worry about corresponding increases in insurance premiums, absences, requests for accommodations, and costs of health care.
II. Weight Discrimination
A corollary to the increase in obesity rates has been an increase in weight discrimination. A 2008 study from Yale University found that weight discrimination occurs in employment settings and daily interpersonal relationships as often as race discrimination — the top charge filed with the Equal Employment Opportunity Commission (EEOC) last year, and is reported by women about twice as often as men. The Yale study further found that discrimination starts earlier for women who are overweight; discrimination becomes a more serious risk for men when their BMI reaches 35; for women, at BMI 27. According to a study by the Obesity Action Coalition, weight discrimination increased by 66 percent between 1995 and 2005, from 7-12 percent of the general population.
Some employers have attempted to address the problem by implementing proactive programs to encourage healthy employees. According to a report by The Conference Board, more than 40% of U.S. companies have implemented wellness programs, which usually involve weight reduction programs of one sort or another.
III. The Law
What protections do Americans have against weight discrimination in the workplace? May employers legitimately make employment decisions based on a person’s weight, assuming that maintaining a certain weight is not a bona fide occupational qualification? What responsibility do employers have to provide a workplace free of weight-based discrimination and harassment?
Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, color, religion, sex, or national origin. Employees have successfully sued under Title VII when weight standards were applied differently to similarly situated protected classes (e.g. women and men), and where weight standards have an adverse impact on a protected class.
The Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified individuals with handicaps, solely on the basis of those handicaps, in any program which receives federal assistance. The Americans with Disabilities Act of 1990 (ADA) extends the protection against disability discrimination to the private sector.
The ADA requires that employers provide a reasonable accommodation in the workplace to qualified individuals with a disability. An individual with a disability under the ADA has: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment.” In other words, to enjoy the protections of the ADA, an employee must demonstrate that s/he has a current disability, had a disability in the past, or is regarded by an employer as having a disability.
A. Until The 2008 ADA Amendments, Obesity Was Generally NOT A Disability Covered By The ADA, While Morbid Obesity Was.
The EEOC and courts have consistently included the more serious condition of “morbid obesity” within the definition of “disability” under the ADA. EEOC guidance documents clearly state that “morbid obesity” could be a protected disability as defined by the ADA, and federal courts have included “morbid obesity” within the category of medical conditions that impair major life activities.
B. The ADA Amendments Of 2008 Expand Coverage
On September 25, 2008, the ADA Amendments Act of 2008 (“ADAAA”) was enacted. The ADAAA expressly overturns several landmark Supreme Court decisions that narrowly interpreted the definition of “disability” and significantly expands the protections afforded to disabled individuals. Though we are awaiting EEOC guidance and case law interpreting the statute, the ADAAA, effective January 1, 2009, redefines disability so that it will likely include obesity-related health conditions and perhaps even obesity itself as a protected disability. On June 17, 2009, the EEOC voted to approve a proposed Notice of Proposed Rulemaking to conform its ADA regulations to the Amendments. The proposed Notice was then sent for comment by other federal agencies pursuant to Executive Order 12067 and for approval by the Office of Management and Budget. When this process is completed, the Commission will publish its Notice for Public Comment. It is likely that obesity will become a protected disability under the EEOC’s regulations, requiring employers to reasonably accommodate the condition.
C. Overweight Employees Will Continue To Successfully Make “Regarded as” ADA Claims
As explained above, the ADA protects employees and applicants from discrimination based not only on actual disabilities, but also on the employer’s perception that they are disabled. EEOC regulations outline three circumstances in which a person may make a claim that they are “regarded as” having an impairment under the ADA:
(A) Is regarded as having such an impairment means:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in paragraph (h) (1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.
Accordingly, obese employees and applicants have sometimes been able to maintain claims that, although they were not actually disabled, they were regarded as being disabled by an employer—i.e. having an impairment, including morbid obesity, that limits major life activities—and are therefore entitled to ADA protection.
Under the ADAAA, “regarded as” claims will be somewhat easier to make because an aggrieved party need not establish that the disability they are regarded as having is a qualified disability. In other words, complainants won’t need to show that their perceived disability substantially limits one or more major life activities. All that is required under the revised Act is a showing of discrimination because of an actual or perceived physical or mental impairment. Thus, regardless of whether being obese, or simply overweight, is considered an impairment under the law, if you are perceived as limited because of your weight, you might well be able to satisfy the law’s requirements and successfully establish discrimination. On the other hand, the ADAAA states that regarded as claims cannot be based on minor or transitory impairments; it is at least arguable that being overweight is minor and/or transitory. What’s more, the ADAAA states that employers are not required to provide reasonable accommodation to an individual who is regarded as being disabled, an issue about which the federal courts previously were split. Finally, if a weight requirement is directly related to the essential requirements of the job, then an employer may be able to successfully defend it.
D. Expect Weight-Related Conditions To Be Increasingly Protected By The ADA
Also note that, whether or not an employee enjoys ADA protection because of his or her weight, that person may suffer from serious health conditions that would nonetheless bring them within the ADA. For example, as noted, obese people often suffer from health problems including diabetes, hypertension, heart disease, stroke, cancer, depression, and osteoarthritis. Indeed, the EEOC has already noted in its guidance on the definition of disability under the ADA that “a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder, [which] is an impairment.” Expect such protections to be expanded under the EEOC’s interpretative guidance of the ADAAA.
E. State and Local Laws May Contain Additional Protections
As you consider issues of weight discrimination in your workplace, be sure to keep in mind the impact of state and local laws. Although Michigan is the only state that has enacted a prohibition against weight discrimination,  some municipalities have enacted ordinances barring weight and personal appearance discrimination. Washington, DC prohibits discrimination based on personal appearance, and ordinances passed in such cities as Santa Cruz and San Francisco bar weight discrimination. Also note that the disability discrimination laws of some states may contain broader definitions of disability than the ADA and may already be interpreted to encompass obesity.
IV. Best Practices for the Employer
In light of the above considerations, here are some practical tips for employers to consider:
Review existing procedures and policies on disability, discrimination, and complaint protocol;
Change/revise procedures as necessary to reflect recent changes to the law;
Provide managers with at least a basic understanding of the ADAAA and all relevant state and local laws;
Review job descriptions to make sure that any weight requirements are reasonably related to the essential requirements of the job;
Do not create “regarded as” disabled claims by making assumptions about what job functions overweight employees can and cannot accomplish;
Treat requests for accommodation from overweight individuals with delicacy and sensitivity, keeping in mind that the individual might well be entitled to ADA protection;
Develop internal policies that mandate the courteous treatment of all employees, regardless of personal appearance;
Educate all employees—especially managers—on what is inappropriate, unprofessional, or illegal conduct toward overweight employees;
Be flexible and prepared for more claims;
Look for guidance from the EEOC in August 2009; and,
Ensure that participation in proactive wellness programs is voluntary and private.