This past summer, the American Medical Association (AMA) officially designated obesity as a disease. This announcement may have significant legal consequences for employers because obesity now may be considered a disability for purposes of the Americans with Disabilities Act (ADA), particularly in light of the 2008 ADA Amendments Act (ADAAA), which greatly broadened the coverage under the statute and promoted a less restrictive interpretation of the disability definition.
If obesity is a disability, you will be required to provide reasonable accommodations to obese individuals to assist them with performing their essential job functions.
Background
The ADA prohibits employers from discriminating against a "qualified" individual with a disability because of that disability with regard to various aspects of employment. To establish a discrimination case under the ADA, a plaintiff must show he or she is disabled; is a qualified individual; and was subjected to unlawful discrimination (or an adverse employment action) because of the disability.
The ADA defines disability as including a physical or mental impairment that "substantially limits" one or more "major life activities"; a record of such impairment; or being "regarded as" having such an impairment. The issue facing employers in light of the AMA's announcement is whether obesity falls within the physical impairment definition and whether that impairment substantially limits one or more major life activities.
In the original regulations implementing the ADA, the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing the ADA, stated "except in rare circumstances, obesity is not considered a disabling impairment." Similarly, in its pre-amendment compliance manual, EEOC stated normal deviations in height, weight or strength are not impairments.
However, body weight that falls outside a normal range, whether above or below, or body weight that results from a physiological disorder (such as a thyroid condition) could qualify as an impairment under the law. EEOC also issued formal guidance that addresses obesity and states severe obesity (defined as body weight more than 100 percent greater than the norm) clearly is an impairment.
Assuming obesity not rising to the morbid obesity level now will be considered a physical impairment in light of the AMA's announcement, the next question becomes whether the physical impairment substantially limits one or more major life activities.
To determine whether someone's major life activities have been substantially limited because of a physical or mental impairment, courts seek guidance from EEOC regulations. The regulations state major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The regulations further define "substantially limits" as being unable to perform a major life activity the average person can perform or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared with the average person.
Overweight or obese individuals often are not substantially limited in a major life activity; therefore, these individuals will not fall within the definition of a qualified individual with a disability. However, the argument may be made that an obese person has a substantial limitation of the metabolic system or the neurological appetite-suppressing system. Even in cases where these arguments are unsuccessful, obese individuals may be protected if they are regarded as disabled by their employers because of their condition.
Being regarded as disabled
According to the ADAAA and EEOC regulations issued in 2011, "… an individual is ‘regarded as having such an impairment' if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not that impairment substantially limits or is perceived to substantially limit a major life activity."
Under the ADAAA, an individual does not need to show he or she actually is disabled or that he or she is substantially limited in a major life activity; instead, an individual simply must show the employer thought he or she was disabled and took adverse action against the individual based on that perception. Consequently, an employee might be considered disabled if his or her employer perceives weight to be an impairment. Therefore, avoid assuming obese applicants or employees will be unable to complete job tasks because of their weight.
Identifying qualified individuals
Even if an obese individual is able to show he or she is disabled and substantially limited in a major life activity, he or she is not a qualified individual with a disability and, therefore, not entitled to the protections afforded by the ADA unless the individual can perform essential job functions with or without reasonable accommodation.
If there is concern about an obese applicant's ability to perform a job, you may ask disability-related questions and require medical examinations of the applicant only after a conditional job offer has been made as long as you do so for all individuals entering the same job category.
When conducting an interview and before a job offer is made, you may not ask job applicants about a disability's existence, nature or severity. If a disability is obvious and it is reasonable to question whether the disability might pose difficulties for the individual when performing a specific job task, you may ask whether the applicant would need reasonable accommodation. This may be the case for obese applicants.
You also are permitted to ask all applicants about the ability to perform specific job functions. For example, it is impermissible to ask whether a candidate has a medical condition, but it is within the bounds of the law to inquire whether the applicant is able to efficiently travel long distances carrying a certain amount of weight, provided this function is a primary job function.
Some employers do not put much faith in applicants' responses to questions posed during an interview and may seek to subject applicants to medical or physical testing to determine whether they can perform essential job functions. It is illegal to require applicants to undergo a medical or physical examination before a conditional job offer has been extended.
However, it is OK to condition a job offer on the passing of a medical or physical exam, and an offer can be revoked if the individual fails the exam, provided the medical or physical exam is required of all applicants in the same job category and the information upon which the decision is based is job-related and consistent with business necessity.
Similarly, if the use of a particular test screens out or tends to screen out individuals with disabilities, the test may not be used unless the employer can show it is job-related and consistent with business necessity.
Existing obese employees whose condition may qualify as a disability present a different scenario than is presented with job applicants.
You still are advised to refrain from asking employees about the existence, nature or severity of a disability. Existing employees should be evaluated on job performance. If an employee's job performance suffers, it is permissible to meet with the employee to discuss the reduction in job performance. If you have a reasonable basis for believing an accommodation is needed, such as inadequate job performance, you may inquire whether an accommodation is needed.
Moreover, if during a meeting with the employee it is revealed the employee suffers from a disability affecting performance, you may engage in a discussion about whether there is a reasonable accommodation that can be provided to assist the employee with improving his or her job performance.
If the disabled employee is unable to perform essential job functions with or without reasonable accommodation, the employee is not entitled to ADA protection.
Accommodating obese employees
You are not required to accommodate every request a disabled individual makes. You only are required to provide reasonable accommodations that do not impose an undue hardship on the company. An undue hardship is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors, including the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer's operation. Undue hardship is determined on a case-by-case basis.
Let's say you employ an individual whose weight exceeds the weight limit for ladders or an obese office employee who requests a special ergonomic chair. You now need to determine whether purchasing a ladder with a higher-weight capacity or special chair is a reasonable accommodation or whether making either purchase amounts to an undue hardship on the company.
If the ladder or chair purchase amounts to an undue hardship and there are no other reasonable accommodations available, you would be permitted to terminate the individual on the grounds the employee was unable to perform the essential job functions with or without reasonable accommodation.
Stay fair
In light of the AMA's recent announcement, you need to respect and protect obese workers' workplace rights. Create a culture of respect and provide opportunity equality for all employees. Your focus should be on employee job performance regardless of whether an employee suffers from obesity or any other medical condition. Stereotypes and generalities should be avoided with each situation being addressed on a case-by-case basis.
Phillip J. Siegel is a partner with Atlanta-based law firm Hendricks, Phillips, Salzman & Flatt.
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