According to the media, Americans are getting fatter and fatter. But overweight is one thing, and obesity is something else again. According to the Centers for Disease Control, 34 percent of adults in the U.S. are considered obese, which is 20 percent over normal weight. And then there’s morbid obesity, which is more than 100 percent over the norm. Increasing numbers of lawsuits center on morbidly obese employees.
Encountering weighty problems. We asked Craig Annunziata to discuss with us the circumstances under which some employers have run into trouble involving morbidly obese employees. He is managing partner of the Chicago office of labor and employment law firm Fisher & Phillips.
He described having a client, a trucking firm, with an employee whose job was to change the tires on large trucks. After 5 or 6 years on the job, though, the worker’s weight had ballooned to more than 400 pounds. So he asked to perform his job sitting down. The employer objected, knowing that a second employee would need to stand and lift tires off the racks on which they were stored, and hand them to the seated worker.
Finding that a burdensome solution, the trucking firm fired the worker, who promptly sued and filed a charge with the Equal Employment Opportunity Commission (EEOC). We’ll tell you how the cases worked out after some explanations.
The newest protected characteristic? In fact, there are currently no federal laws that designate weight as a protected characteristic, as race, gender, and religion are under Title VII of civil rights law. But don’t stop there. Since the passage of the amendments to the Americans with Disabilities Act, courts are just about certain to conclude that morbid obesity qualifies as a disability.
Says Annunziata, “Before ADAAA, employers won something like 75 percent of disability lawsuits; employees either weren’t disabled enough or they were too disabled to win their cases. But now, almost anyone with an ailment will require his or her employer to engage in what ADA calls ‘the interactive process.’”
That is, employee and employer must explore how the job or its resources or equipment could be modified to accommodate the employee’s needs. With those amendments, Annunziata feels, Congress put the whole burden on the employer, especially because undue hardship—the standard under which an employer need not accommodate a disability—is very hard to prove.
What happens in court? Annunziata reports that the trucking firm’s obese employee fell asleep twice during his deposition and had to admit that he could no longer stand to lift tires from racks.
From the court’s point of view, the employer was not discriminating against him by finding he could no longer do his job. But the key for employers, Annunziata stresses, is to arm a physician of your or the employee’s choice with the individual’s job description and let the doctor—not the employer—decide if the employee can perform the job.
He adds that EEOC has been stressing to employers that the rates of obesity are higher among black and Hispanic employees than among whites. That means employers that refuse to hire obese or morbidly obese people face not only potential liability under ADA but also the disparate impact of their policies on members of minority groups.
We’ve heard of one employer, Citizens Medical Center of Victoria, Texas, with a policy prohibiting the hiring of obese candidates. The hospital’s rationale is that its employees’ physical appearance “should fit with a representational image or specific mental projection of the job of a healthcare professional.” (It remains to be seen, should an obese candidate or EEOC sue, whether the policy will stand up in court.)
It may or may not be notable that Texas, like 48 of the other states, does not view weight as a protected characteristic: Only Michigan and several U.S. cities do.
Here’s more about workplace obesity. Let’s say you’re a clothing retailer rather than a healthcare facility, and you decide that your customers will not want to deal with an obese or morbidly obese employee. So you adopt a similar policy, along the lines of ‘Our employees need to be able to model our apparel attractively.’ Will the policy fly? Highly unlikely, suggests Annunziata.
“You can’t assume customers will object to an employee’s appearance,” he says. “Only if someone fails to meet his or her sales quotas are you justified in letting them go.”
Here’s another morbid obesity case: BAE Systems is a global firm offering consulting and IT services and military equipment. In one of its manufacturing plants, it fired an employee who weighed more than 600 pounds, believing that he could no longer do his job. His work involved sorting parts on a raised platform, driving a forklift, and doing deskwork.
The employer concluded that the worker had difficulty bending, stooping, and kneeling, so he couldn’t do his job. EEOC sued on the employee’s behalf, and the court ruled that the employer had failed on two accounts: It hadn’t explored either a different job for the employee or reasonable accommodations for his current job. Be fair and consistent, cautions Annunziata—and involve a doctor in your decisions about who is unable to do what.
Strategies for employers. In a recent article “Obesity in the Workplace: A Disability You Must Accommodate?,” Kristine E. Kwong, partner in the Los Angeles office of law firm Musick, Peeler & Garrett, LLP, suggested the following strategies for handling workplace obesity:
- Deal carefully with obese employees’ requests for accommodations. When such a request is made, the employer is obligated to conduct a timely and good faith interactive exchange with the employee to determine reasonable accommodations.
- Check in on your attitudes. Examine your disability policies and focus on training supervisors to deal with and questions about obesity. It might be helpful to question supervisors as to their own feelings about dealing with obesity in the workplace. The bottom line is that the employees must be able to perform the essential functions of their job regardless of their outward characteristics.
- Promote wellness in the workplace. Efforts can be made to promote healthier habits among the employees such as losing weight or smoking cessation programs. Many health carriers offer incentives for wellness programs in the workplace.
- Prevent weight-based harassment. Be sensitive to obesity related jokes as this could bring a potential claim for disability harassment.
- Audit your hiring practices. Remember, although not all obesity related conditions may quality as a medical condition under the ADA, some conditions may and it will affect your ability to hire and promote. When hiring and recruiting, focus on the applicant’s ability to perform the essential functions of the job.
The bottom line is that obesity related conditions are sensitive issues from a medical and socio-economic standpoint. Maintaining sensitivity and keeping an open mind as to the potential claims will go a long way in preventing weight based discrimination lawsuits. Read the complete article.