Discrimination against Employee "Regarded as" Disabled Because of Obesity

There are several federal laws that protect individuals from discrimination based on recognized protected categories, including qualified disabilities. In particular, individuals with disabilities are protected by the Americans with Disabilities Act of 1990, also known as the "ADA." However, not all perceived disabilities qualify for protection. What happens when your employer only believes you are disabled and discriminates against you based on that belief?

Is obesity a disability?

Conventional wisdom says that being overweight, without suffering from an underlying medical conditions such as Type 2 Diabetes, is not a disability protected by the ADA. However, the AMA's push to classify obesity as a medical condition may change that wisdom forever. That's partly because the new ADA amendments have redefined "disability" so broadly that nearly every diagnosed medical condition fits. But, regardless of whether obesity fits within the legal definition for purposes of the ADA, if your employer regards you as disabled because of your weight, and discriminates against you for that reason, you may still have a claim.

Richardson v. Chicago Transit Authority

A bus driver filed a lawsuit against his employer who dismissed him because it regarded him as disabled. The employee was a bus driver for the Chicago Transit Authority (CTA). He attempted to return to work following medical leave. Although a CTA physician concluded that he was physically able to return to work, he was also given a "safety assessment." This type of assessment was not normally required of bus operators. Following the assessment, he was not allowed to return to work because he was regarded as disabled specifically due to his obesity.

What is means to be "regarded as" disabled

Under the ADA, an individual is considered to have a disability if they meet one of the following requirements:

  • Have a physical or mental impairment that substantially limits one or more major life activities;
  • Have a record of such an impairment; or
  • Are regarded as having such an impairment

One of the arguments the employer in that case made was that the employee did not show his obesity substantially limited a major life activity. That would be a requirement in establishing whether obesity is a protected disability. However, in this particular case, where the employer has only perceived that a physical impairment exists, that showing is not required. Regardless, the question of whether obesity is an actual impairment is still unresolved.

The EEOC Provides Protection for the Severely Obese

Individuals with a BMI of 40 or higher, or with a BMI of 35 along with additional underlying conditions, such as diabetes, have already been recognized by the EEOC as being covered under the ADA. In fact, there were two major discrimination cases settled in 2012 which involved obese employees being terminated because of their weight.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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