Aug 06, 2012

Obesity as a disability under the ADA – reweighing the issue

By: Paul Ebeltoft

Those of you who attended my presentation on diversity issues at a SAHRA meeting last summer may remember the case of Lisa Harrison, a manager of a business providing services for children of patients with serious illnesses in Louisiana. She was fired after eight years of exemplary service because, standing 5 feet 2 inches and weighing over 500 pounds, her employers felt that she would be unable to perform CPR in case of an emergency.

Ms. Harrison had no disorder. She was not suffering from a psychological or physical cause for her obesity. Her employer argued that obesity without a physiological basis was a personal choice or a personal characteristic, like eye color, and not the basis for a disability claim. A year ago, whether a claimant would have to prove the underlying basis of their disorder in order to qualify for ADA protection, at least in the case of obesity, was an open question. Courts are coming closer to deciding.

Employers may find court rulings hard to swallow.

First, in December 2011, a lower court sustained Ms. Harrison’s claim. Finding that the voluntariness of her weight was irrelevant in determining if a condition is or is not a qualified impairment, the court set the matter for trial. In April 2012, the case settled. The employer agreed to pay $125,000 to Ms. Harrison’s estate (she had died while the proceedings were pending). The employer made other concessions, including naming a room at the facility at which Lisa worked in her honor.

Recently, the weight-as-disability issue has come closer to home. It may also have come closer to a definitive court ruling.

Eric Feit, filed an administrative complaint against Burlington Northern Santa Fe Railway (BNSF) with the Montana Department of Labor and Industry claiming discrimination based on physical or mental disability. Mr. Feit’s weight, not disclosed in any public document I have seen, was the legal issue. Whatever his size, it was not the result of any physical or mental disease process.

Mr. Feit had applied to be a BNSF conductor trainee. He apparently met all conditions of employment. None-the-less, the BNSF told him to either lose 10% of his body weight or successfully complete added physical examinations at his own expense. Mr. Feit completed all of the tests, except one, which cost $1800; an amount that he could not afford. BNSF insisted that Mr. Feit complete the test at his own expense, so Mr. Feit set out to lose 10% of his body weight instead. He apparently did. BNSF then withdrew its conditional offer because of “significant health and safety risks associated with extreme obesity.”

After a series of administrative and court proceedings, Mr. Feit received an award of $495,641.23 equaling earnings as a conductor, reduced by what he earned at other jobs over four years. Just three weeks ago, the Montana Supreme Court acted to clear an obstacle for Feit to collect. Departing from other federal decisions, the Montana Court found that obesity “outside the normal range”, without any underlying physiological condition, could be a disability if it affects one or more “body systems.”

Tipping the scales in favor of HR

The first lesson HR professionals should learn from these cases is to be very careful when dealing with physical conditions that you may think are due to the applicant’s or employee’s own conduct. “It’s his/her own fault,” is no automatic excuse for an adverse employment decision based on a physical condition.

The second lesson is to readjust the lens through which you look when you consider an employee’s body size. If there is one thing that cases like the Harrison case teach is that stereotypes, myths, and biases about weight or body size should not be the basis of employment decisions. If you think that a short person weighing 500 pounds may not be able to perform some physical activities, follow the following steps. (1) be certain that these tasks are described as a part of essential job function for the position. (2) Give non-discriminatory tests to all applicants (post offer) or to all employees similarly classified that fairly assess your perception. (3) Be sure to consider reasonable accommodation of the physical limitation if it triggers the ADA.

The final lesson, underscored by the opinion in the Feit case, is that there is no litmus test for when weight may become a disability. Weight “outside of the normal range” is a very flexible standard, as is the way in which weight “affects” a body system. HR professionals need to be sensitive to the weight-related requests for accommodation, whether or not the person needing accommodation is morbidly or extremely obese.

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(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the August, 2012 Southwest Area Human Resource Association newsletter.