June 12, 2019
New Protection for Obesity and the Vertically Challenged?
This article about obesity and discrimination caught my eye. I became more intrigued when I read Massachusetts lawmakers are considering a bill to add height and weight to the state’s anti-discrimination protections. It appears this is at least the third time since 2013. Then I saw this recent case from the 7th U.S. Circuit Court of Appeals (covering IL, IN, WI). The court affirmed the lower court’s ruling against the Plaintiff (bus driver), holding his obesity was not a disability under the Americans with Disabilities Act (ADA).Thus, when the employer fired him for failing a driving test, due to his obesity, it did not violate the ADA.
Why? This court looked to three of its sister courts (2nd, 6th and 8th Circuits) and found they held that “obesity is an ADA impairment only if it is the result of an underlying ‘physiological disorder or condition’.” The former employee provided no evidence that his “extreme obesity” was the result of any such disorder or condition.
Lessons Learned
?- The former employee also sued alleging discrimination based on perceived disability. The court did not decide in his favor on that claim either and for the same reason. He had to show that the employer believed he “suffered from an impairment, that if it truly existed, would be a disability under the ADA.” Since it wasn’t, the employer couldn’t.
- The court does not state there is a connection between these but, it does point out that the employer made several efforts to continue the plaintiff’s employer before it fired him. (1) they offered him an agreement; they would transfer him temporary medical disability so he would work with a doctor, lose weight and be monitored, if he would release any claims against them; (2) when he declined that offer, they transferred him anyway and retain him on that status for TWO YEARS; (3) when they notified him that they would extend his status for one more year, conditioned upon providing them with medical documents, he failed to do so and they terminated him.
- Doing more than what the law requires can go a long way in demonstrating good faith. If the court had held that this employee was disabled under the ADA, having given him what was essentially a two-year leave of absence may have produced the same result for the employer – a finding in their favor.
