My client asked me a simple enough question. “There’s a guy that’s applied to work for my company, but he’s huge! The guy is really overweight. He’s got a good resume and can probably do the job fine, but I don’t want to bring on someone who is going to hike up my health insurance. It’s already so high that I’m not sure I’ll be able to provide it to my employees for much longer. Am I gonna get sued if I don’t hire this guy?”
In a nutshell, my advice to my client was “Be careful.” Obesity discrimination is one of the more sensitive, complex and conflicted issues in employment law. It’s difficult to discuss because obesity is often personal and discussion of it can be considered impolite or offensive. At the same time, obesity is a wide-spread crisis that affects almost everyone, often in the form of higher health insurance costs. Making matters worse, general public sentiment regarding obesity is presently very strong, but the laws applicable to these cases do not necessarily match up with that sentiment.
Obesity: The Personal National Epidemic
One of the complexities of the obesity issue is that it’s so easily personal. It didn’t take me long to realize that the “huge” guy my client was talking about could one day be me. I’m 6’1” and weigh 210 lbs. My Body Mass Index (“BMI”) is 27.7. I’m “overweight.” Over the last few years, I’ve gone from having a “little meat on my bones” to “love handles” to “spare tire” territory. I’m not “huge” yet, but I realized that my frequent runs to Skyline Chili might eventually fix that.
Anyone reading this knows I’m in ever-growing company. According to the Center of Disease Control, 35.7% of U.S. adults were obese in 2010. Even more frightening, during that same time frame, 16.9% of U.S. children and adolescents were obese. In 2000, no U.S. state had an obesity rate above 30%. In 2010, twelve U.S. states did. I don’t need to go on. You’ve heard these kinds of statistics in the news so often you’re probably numb to them.
You’ve also heard about the fallout. Usually a couple of times a week, there’s a new medical study titled “Obesity Linked to….” or “Obesity Causes…” The list of obesity-associated morbidities (diseases caused or exacerbated by obesity) seems to grow as fast as the American waistline. Not surprisingly, we then get reports like “Obesity Adds $190 Billion in Health Costs.”
Employers Trying to Control Costs
Health insurance is what my client was concerned about, and he’s not alone. My employer-clients focus on the bottom-line. They seek to control costs in their businesses. Right now, one of the most alarming costs my clients are dealing with is the rise in health insurance premiums. For any number of reasons, employers often try to provide employee health benefits, but it’s getting more and more costly. And while some of the causes of increased health insurance costs are unavoidable (e.g. an aging workforce), employers see obesity as a preventable cause of poor health. According to the CDC, “[m]edical expenses for obese employees are estimated to be 42 percent higher than for a person with a healthy weight.”
To be clear, my employer-clients are not worried about obesity caused by genetics, some immutable physiological condition (e.g. Prader Willi syndrome), or medical treatment, such as prescriptions that cause weight-gain. My clients don’t want to pay for obesity caused by voluntary and long-tem conduct. This is about donuts and candy bars over apples and oranges; “all you can eat” versus reasonable portions; video games instead of walks in the park; the Wendy’s Baconator Double Burger versus… well, just about anything.
Any physician will tell you that the causes of obesity can be complex. The problem here is that in too many cases, the cause of an employee’s obesity is not particularly mysterious. When clients come to me, it’s because they don’t want pay higher insurance premiums they perceive as being the result of some employees refusing to take care of themselves. These employers want to do something about that.
The Anti-Obesity Zeitgeist
In addition to my clients feeling the pressure of increased insurance costs, a substantial change in public sentiment regarding obesity is likely to increase their willingness to take action against obese employees. From my perspective, we are in the midst of an “anti-obesity zeitgeist.” It’s everywhere you turn. Consider:
- Alarming statistics regarding U.S. obesity rates;
- The weekly flow of medical studies about obesity and, in particular childhood obesity;
- Commonplace dire descriptions of America’s obesity problem as an “epidemic,” “pandemic,” and a national “security threat” (to name very few);
- U.S. government focus on obesity (e.g. Michelle Obama’s “Let’s Move” campaign, the CDC’s efforts to combat obesity; regulation of trans-fats, bans on junk food in schools, school lunch reform, and New York Mayor Bloomberg’s proposed ban on soft drink sizes);
- World-wide spread of obesity epidemic (e.g. World Health Organization data, China, Russia, Germany, United Kingdom, Mexico, and even Canada);
- The proliferation of employer “wellness programs”;
- Television focus on obesity (e.g. “The Biggest Loser,” “The Weight of the Nation,” and “Too Fat for 15”);
- Movie focus on obesity and diet (e.g. “Super-Size Me,” “Forks Over Knives,” and “Fat, Sick and Nearly Dead”);
- To date, there are over 35 million YouTube videos with the keyword “obesity”;
- High profile celebrity weight loss (e.g. Drew Carey, Kirstie Alley, John Goodman, Paula Deen diagnosed with Type 2 diabetes and vowing never to give up butter, Paula Deen now uses only a spoonful of butter, loses 30 lbs); and
- Even our pets are becoming obese!
The above examples vary from the significant to the trivial, but that’s what makes this a “sign of the times” or “zeitgeist.” From national media to YouTube videos and website comments, examples of anti-obesity sentiments are endless. This represents a substantial change from say, 20 or even 10 years ago. Obesity as a general topic might have occasionally been on the radar back then, but it wasn’t part of the 24-hour news cycle. It certainly was not accompanied by the grave alarm it is today.
Notice also that the vast majority of all the media items we are exposed to about obesity are about voluntary, preventable obesity. The message, over and over, is that we have it in our power to overcome obesity, but inexplicably fail to do so to the great peril of ourselves, our children and our country. So bad is our general willpower, some believe, that the government should step in and regulate our soft drink sizes (to name one example).
Then, as health insurance costs skyrocket, obese employees are easy to blame. Adding to this, non-obese employees may also follow public sentiment and feelings of resentment may develop against obese employees. In employment litigation terms, this is a powder-keg situation. By itself, this would be reason enough for me to advise caution to my clients. However, the greater problem here is that federal and Ohio employment law does not necessarily reflect public sentiment.
The Americans With Disabilities Act of 1990 And Amendments Act of 2008
In federal law, the Americans with Disabilities Act (“ADA”) is our chief concern with respect to litigation involving obesity discrimination. Passed in 1990, the ADA was a sweeping civil rights initiative with the intent of protecting persons who had a disability from discrimination in the workplace and with respect to public accommodations.
Years after the ADA went into effect, Congress became concerned that the ADA was not sufficiently protecting persons with disabilities, primarily because of overly-technical court and administrative interpretations of the term “disability.” For example, there were conflicting decisions among the federal courts as to whether the following conditions qualified as “disabilities”: epilepsy, heart disease, diabetes, bipolar disorder, HIV infection, asthma and vision in only one eye.
To correct this, the ADA Amendments Act (“ADAAA”) was passed in 2008. The ADAAA’s purpose was to have courts and administrative agencies focus on whether a person protected under the ADA was being discriminated against, instead of whether the person met the exact definition of having a “disability.” The result is that the general inquiry is a bit more flexible than it has been in years past.
Under the ADA (amended), a “disability” is defined as “(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) being regarded as having such an impairment….” 42 U.S.C. § 12102(1).
The EEOC Leaves the Door Open for Obesity Caused By Voluntary Conduct to be Considered a Disability
Since the Amendments, the Equal Employment Opportunity Commission (“EEOC”), which is the federal government agency assigned to enforce the ADA’s protections, has promulgated regulations and guidelines related to the ADA.
Neither the ADA nor the EEOC regulations specifically define “obesity.” However, obesity is discussed in the EEOC’s Compliance Manual, under Section 902.2(c)(2), as follows:
Being overweight, in and of itself, generally is not an impairment. Thus, for example, a flight attendant who, because of avid body building (which resulted in a low percentage of body fat and a high percentage of muscle), exceeds the airline’s weight guidelines does not have an impairment. Similarly, a mildly overweight flight attendant who has not been clinically diagnosed as having any medical anomaly does not have an impairment.
On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment. [Emphasis added, citations omitted].
The EEOC also notes that:
The mere presence of an impairment does not automatically mean that an individual has a disability. Whether severe obesity rises to the level of a disability will turn on whether the obesity substantially limits, has substantially limited, or is regarded as substantially limiting, a major life activity. “[E]xcept in rare circumstances, obesity is not considered a disabling impairment.” 29 C.F.R. pt. 1630 app. § 1630.2(j).
So, according to the EEOC, being overweight is generally not “an impairment” and therefore would not constitute a “disability” under the ADA. If the weight is attributable to some kind of physiological or mental disability, then being overweight would be considered part and parcel of the underlying disability. This makes sense. So far, so good.
When it comes to “severe obesity,” however, the EEOC says that it is “clearly an impairment” but that it also has to “substantially limit… a major life activity.” Well, if a person’s weight is “100% over the norm,” showing substantial limitations on major life activities is not difficult. If the high normal weight of a 5’9” man is 168 lbs, showing substantial limitations of major life activities at 336 lbs is not a tough threshold. People far less overweight than that can have significant trouble climbing stairs, sleeping (sleep apnea), doing household chores, just to name a few possibilities.
And even though the EEOC says that “except for rare circumstances, obesity is not considered a disabling impairment,” the EEOC does not rule out severe obesity caused by voluntary conduct. The EEOC does not require any proof of an underlying physiological or mental condition that caused the obesity. This all means that in the case of a severely obese applicant or employee, employers should bet that he/she will be considered “disabled” and covered by the ADA.
Federal Case: No Underlying Physiological or Mental Condition Required to Show Severe Obesity is a Disability
Late last year, a federal district court in Louisiana found that neither the EEOC regulations nor guidelines required proof of an underlying physiological or mental condition that caused the claimant’s severe obesity. In EEOC v. Resources for Human Development, Inc. (2011) 827 F.Supp.2d 688, the case involved an EEOC claimant that was a 400 lb woman who had been hired as a prevention/intervention specialist for a home for chemically dependent women and their children. The claimant was terminated eight years later. At the time of her termination, the claimant was 527 lbs., and she filed a charge of discrimination with the EEOC, alleging that she had been terminated because her employer regarded her as disabled due to her obesity.
In Resources, shortly after she lost her job and filed her EEOC claim, the claimant died. The official cause of death was listed as “morbid obesity.” Additionally, her death certificate included “significant contributing” conditions to her death as hypertension, diabetes and congestive heart failure.
No evidence was presented that any underlying physiological or mental impairment caused the claimant’s obesity. In fact, the Resources court stated that the conditions contributing to the claimant’s death were “resultant disorders from her obesity.”
The Resources court noted that other cases had held that the “voluntariness” of a condition was “irrelevant to determining if a condition is or is not an impairment.” Moreover, the court found that under EEOC regulations and guidelines, there was no requirement to prove an underlying physiological basis for the claimant’s obesity. The court found that severe obesity “qualifies as a disability under the ADA.”
The court also found that the claimant “was actually disabled as a result of her severe obesity because of the resulting diabetes and heart problems.” The implication here is that even if obesity was not a disability, the claimant had become so obese that she actually developed ancillary disabilities that qualified for protection under the ADA.
Unfortunately, the caselaw is sparse with respect to obesity and disability, and the Resources case is notable. The ADA was intended to level the playing field for persons with disabilities. The Resources case would suggest that the ADA would extend that protection to persons whose long-standing lifestyle choices have created a disability and indeed, even endangered their own lives.
Moreover, Ohio employment law often tracks federal interpretation of the ADA, usually providing as much if not more protection than federal law. As such, federal court rulings regarding obesity (such as Resources) have an additional level of potential fallout.
Even though Ohio is an “at will” employment state, employers must be mindful that they are still regulated by the ADA and Ohio anti-discrimination laws. Refusing to hire someone because they are going to cost your business money would seem logically justified, but when a potential employee is disabled (or considered so), that logic will not serve because of anti-discrimination laws.
Indeed, many forms of disabilities would likely or necessarily entail more medical treatment than usually required for persons without disabilities and therefore might increase health insurance costs. As such, using increased insurance costs as a justification not to hire or fire someone would adversely affect many disabled individuals who have conditions through no fault of their own. That would be patently unfair.
The rub here is that having to incur those costs because of someone who is obese through voluntary, preventable and long standing conduct is irksome. Moreover, when all the news and media is telling employers (and everyone) how bad obesity is, the temptation is to think that adverse employment actions against the obese are inherently justified.
But such actions are not inherently justified, and public sentiment creates very risky pressures that employers must recognize. Be careful.
Employers must carefully review the essential job functions of a position and determine whether the obese applicant or employee can perform those job functions with or without an accommodation. Even if the applicant or employee is not “severely obese,” if an employer treats him or her as if they were severely obese (or otherwise disabled), the employer could be sued for discrimination. So employers should stick to the essentials and look past the insurance issues and public sentiment.
Keep in mind, however, that employers are entitled to consider obesity if the condition interferes with the employee’s performance of essential job functions even with an accommodation. If a job requires a great deal of physical exertion that an obese employee cannot perform even with an accommodation, that employee is not protected by the ADA or Ohio law.
In addition, when dealing with an obese or morbidly obese employee that may display job performance concerns, he or she must still be treated just like any other employee showing a work performance deficiency. That is, if the obese employee demonstrates a job performance problem, that issue should be timely and thoroughly documented as it occurs.
Another important matter is to always make sure you have a legitimate business reason for treating one employee one way while treating a different employee another away — especially if the employees may be working in the same job position.
Above all, please take care not to mistreat any employee because of his or her weight condition, or his or her perceived weight problem. If you observe other supervisors or co-workers engaging in this activity, please take appropriate action to ensure that such misconduct stops. For it could be construed as unlawful, disability-based workplace harassment that the employee might assert created a hostile work environment for him or her.
Cases involving employment discrimination tend to be volatile and personal. Cases involving obesity have the added burden of being part of national conversations regarding obesity and healthcare. Employers should keep this in mind and be fair, be consistent, and be careful.