OBESITY ACCORDING TO THE ADA & ADAAA

Is it a Protected Disability or Can Employees be Legally Fired for

Being Overweight?

Stereotypes Lazy Weak-willed Unsuccessful Unintelligent Lack self-discipline Poor will-power

Statistics Weight discrimination is now comparable

to racial discrimination in AmericaOn average:

Overweight EE’s are paid $1.25 less p/hr Over a 40yr career, obese workers will

earn $100k less than their smaller peers Slightly heavy women make about 6% less

in wages than standard weight women Very heavy women make 24% less

Statistics People that were 50% or more above

their ideal weight that were surveyed• 26% were denied benefits such as health

insurance• 17% reported being fired or pressured to

resign

Stop Obesity Discrimination With these astounding facts and

percentages of people that are affected by obesity while trying to work in a competitive job market, my presentation will address an overall look on why protection from obesity is important, and why the clarity of such protection is much needed!

Americans with Disabilities Act

There is no federal law that prohibits obesity discrimination, so plaintiffs have brought weight discrimination claims under the Americans with Disabilities Act (“ADA”) with varying degrees of success.”

Defining the ADAAn individual with a disability is defined as a

person who: Has a physical or mental impairment that

substantially limits one or more major life activities;

Has a record of such an impairment; or Is regarded as having such impairment.

Prima Facie elements of a Disability

When establishing the required elements of a prima facie case of disability discrimination under the ADA three elements must be proven:

(1) the individual’s impairment qualifies as a disability within the meaning of the ADA;

(2) the individual is qualified to perform the job-essential functions with or without reasonable accommodations; and

(3) The individual has suffered an adverse employment action owing to the employer’s act or omission against the individual

ADA Amendments Act of 2008 The passing of the ADA Amendments Act

of 2008 (the "ADAAA"), signaled congress's intent that the definition of disability should be construed broadly. Prior to the ADAAA, the EEOC's Interpretive Guidance included the statement that, "except in rare circumstances, obesity is not considered a disabling impairment.” The EEOC has since removed that language. ADA Amendments Act of 2008

THE ADAAA expandedThe Americans with Disabilities Act

Amendments Act (ADAAA) significantly expanded the definition of "substantially limits" and "major life activities," increasing the likelihood that morbid obesity or even obesity constitutes a disability under the ADAAA. 

The Terms “Substantially Limits” and “Major Life Activity”

  The term “substantially limits” shall be construed

broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.

Impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)

“Major Life Activities”Additionally, the ADAAA expands the scope

of “major life activities” to include the operation of major bodily functions, including activities such as sitting, reaching, bending, and lifting.  The addition of these activities may be relevant to a claim that obesity is a covered impairment

“Regarded As” . The ADA regulations provide that an

individual is "regarded as disabled" if she: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer 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 specified in the ADA subsection, but is treated by an employer as having a substantially limiting impairment.

“Regarded As” An individual will be "regarded as disabled" when others behave

toward that individual as if she had a substantially limiting impairment, regardless of whether the individual actually has such an impairment. 

“The ‘regarded as disabled’ provision, which is derived from similar language in the ADA's precursor statute, the Rehabilitation Act of 1973, was intended by Congress to provide relief to individuals who are discriminated against because of the ‘myths, fears, and stereotypes’ associated with disabilities." “In short, the ‘regarded as disabled’ provision was designed as a safety net for the individual who, though not in fact disabled from performing a particular job, was nevertheless discriminated against based upon the erroneous assumptions of others about such individual's ability to perform that job ("regarded as disabled" provision intended to combat the effects of "archaic attitudes,"

Clarity!If a person is 250lbs. or 500lbs, what are the parameters that outline what is considered as “morbidly obese?” “The EEOC’s interpretive guidance states that being overweight, in and of itself, generally is not an impairment but that ‘severe obesity’, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” Terms such as “100% over the “norm” in addition to others that I will mention, are areas that need to be explicitly ironed out, in order to offer clear interpretation of the law for everyone.

The law should specifically state obesity as a disability.

Under the current statute, court rulings have been split when the issue of obesity discrimination has been presented. The issues that have arisen are due to the current language of the statute within the American with Disabilities Act and the implementation of the Americans with Disabilities Act Amendments Act. The conflicting judgments are due to the fact that the ADA does not specifically define when obesity is considered to be a disability.

Cook vs. State of Rhode Island Department of Mental Health

Plaintiff-appellee Bonnie Cook worked at Ladd as an institutional attendant for the mentally retarded from 1978 to 1980, and again from 1981 to 1986. Both times she departed voluntarily, leaving behind a spotless work record.

In 1988, when plaintiff reapplied for the identical position, she stood 5'2"' tall and weighed over 320 pounds. During the routine pre-hire physical, a nurse employed by MHRH concluded that plaintiff was morbidly obese but found no limitations that impinged upon her ability to do the job. Notwithstanding that plaintiff passed the physical examination

MHRH claimed that Cook's morbid obesity compromised her ability to evacuate patients in case of an emergency and put her at greater risk of developing serious ailments

Consequently, MHRH refused to hire plaintiff for a vacant IA-MR position.

In due season, the parties tried the case to a jury. At the close of the evidence, appellant moved for judgment as a matter of law. The court reserved decision and submitted the case on special interrogatories. The jury answered the interrogatories favorably to plaintiff and, by means of the accompanying general verdict, awarded her $100,000 in compensatory damages

The plaintiff proceeded on a perceived disability theory, positing that she was fully able to do her job although MHRH regarded her as physically impaired.

EEOC v. BAE Systems, Inc.EEOC v. BAE Systems, Inc., the plaintiff; Ronald Kratz, was an employee weighing

over 600 pounds with job duties consisting of driving a forklift and material handling in BAE’s manufacturing facility.

The majority of Kratzs’ job responsibilities consisted of desk work (90 percent), and a very small portion he was responsible for was standing, and/or driving a forklift (10 percent).

Ronald Kratz was instructed to wear a seatbelt whenever he used the company forklift, and due to his weight, he requested a seatbelt extender.

The plaintiff did not receive the extender; instead, he was terminated two weeks later because according to BAE, “he could no longer perform his job due to his weight.

The EEOC said, “The Company did not engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform his duties.” “So long as an employee can perform the essential job duties of a position, with or without reasonable accommodation, the employee should be allowed to work on the same basis as any non-obese employee.

The suit was settled for $55,000 to be paid to Ronald Kratz along with outplacement services in addition to other agreements.

E.E.O.C. v. Texas Bus Lines• Arazella Manuel was an applicant for Texas Bus Lines. Manuel had to

pass a physical examination in order to drive the passenger van for the company.

• Even though Arazella passed the road test, the medical examiner disqualified her from receiving a clearance certificate because he noticed her having a slight waddle as she rose from her chair preparing for her exam.

• The doctor noted the reason for his rejection was Ms. Manual would not be able to move around fast enough if there were to be an accident on the van. Texas Bus Lines consequently, disqualified her from employment.

• The Court noted that, “although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. Such an impairment might not diminish a person’s physical or mental capacities, but nevertheless substantially limits that person’s ability to work as a result of the negative reactions of others to the impairment

Recommendations Train employers and supervisors on the legalities

associated with discriminating against overweight employees that are “perceived as” disabled due to their weight.

Require reasonable accommodations for overweight employees and/or applicants.

Mandate employers to require physicals only when the job requires a medical level of expectation in order to carry out the essential functions of the position.

Eliminate weight restrictions for a job with the exception of those which pose a safety threat if a weight standard is exceeded.

Stop! “Employers should be careful not to make

assumptions about obese individuals' ability to do a job. Managers and supervisors should not convey to obese applicants or employees any belief that the individual cannot perform the essential functions of the job held or sought or that the individual presents a safety risk. Moreover, supervisors and managers should not make any comments suggesting to applicants or employees any belief that the employee's weight is an impairment. Further, employers should not automatically reject accommodation requests from morbidly obese or obese employees.”

PerceptionIn the words of Wayne W. Dyer, “change the

way you look at things, and the things you look at change.”