Obesity a Workplace Disability? One Court Bucks Trend and Says No

Monday, July 29, 2013 | 0

In mid-June, the American Medical Association concluded that obesity is a disease “requiring a range of medical interventions to advance obesity treatment and prevention.”

This news led Jon Hyman at the Ohio Employer’s Law Blog to conclude that the classification of obesity as a �"disease�" has huge employment law implications; namely, that under the Americans with Disabilities Act, employers would have to consider allowing for reasonable accommodations for obese employees.

Indeed, even before the AMA guidance, a Louisiana court determined that morbid obesity was a disability under the ADA, thus requiring reasonable accommodation.

Well, last month, a state court in West Virginia concluded otherwise.

The case of the obese blackjack dealer

In Andrew O. v. Racing Corporation of West Virginia, a morbidly obese blackjack dealer sought accommodations from his employer with respect to this workplace uniform (the standard issue was too small; he needed a 7X tuxedo shirt) and break locations (he was unable to walk to and from the employee break area during his 25-minute break without shortness of breath and becoming fatigued).

Ultimately, the human resource manager terminated the employee for dress code and break area violations. In all, he worked for the casino for less than two months.

The employee later sued, alleging violation of the West Virginia Human Rights Act, which contains West Virginia’s law against disability discrimination statute. A West Virginia circuit court granted summary judgment to the employer, finding that the employee was not disabled, in part, because obesity is not a per se impairment under state law, and in part because the employee acknowledged that he was able to do everything that an average person was capable of doing.

What the West Virginia Supreme Court said

On appeal, the Supreme Court of Appeals of West Virginia agreed:

Petitioner next argues that he was disabled under the WVHRA because his obesity, thyroid condition, and arthritis substantially limited him in a major life activity. However, as the circuit noted in its order on appeal, petitioner testified at his deposition that he was able to “do almost everything” the average person does, albeit at his own pace. Further, petitioner’s doctor’s note–regarding petitioners need to sit while he worked — did not indicate that petitioner was substantially limited in a major life activity. Given that respondent is entitled to a strong inference that discrimination was not a determining factor in petitioner’s termination, we find that the circuit court did not err in finding that petitioner was not disabled. The record taken as a whole could not have led a rational trier of fact to find for petitioner because he failed to make a sufficient showing that he was substantially limited in a major life activity.”

Since I do not practice law in West Virginia., other than this case, I do not know how courts treat the West Virginia Human Rights Act compared to the Americans With Disabilities Act. However, given the recent amendments to the ADA, through which the EEOC and many federal courts have significantly lowered that the bar for proving a disability, I would not put too much stock into this decision.

Rather, I agree with Jon that employers should err on the side of caution and continue to provide reasonable accommodations to morbidly obese employees as well as those with other conditions that may arguably fall within the scope of the ADA.

Certainly, if an employe’s accommodation requests catch you flat-footed, give your lawyer a shout to work through them with you.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP. This column was reprinted with his permission from his blog, The Employer Handbook.