Friday, September 30, 2011

EEOC Weighs in on Obesity Discrimination - COTW #60

"Weighs in" - get it? I stayed up all night thinking of that one. The latest employment law Case of the Week comes from a lawsuit filed by the EEOC on behalf of an ex-BAE Systems employee. The EEOC claims that the man's employer fired him because of his morbid obesity. Per the EEOC's press release:
BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job, the EEOC said. The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.
But wait, since when is weight a protected class?

It's not (at least under federal law). But disability is, and that's the theory the EEOC is hanging its hat on. It described the employee's morbid obesity as a disability, and further notes that his employer regarded him as disabled. A few ADA notes: To be covered, the employee must have a disability OR a record of a disability OR (and this is the big one) be regarded as disabled. The ADA was recently amended by the ADAAA to (forgive my editorializing for a moment) cover just about everyone under the sun under the "regarded as" theory.

So, while weight is not covered, employers dealing with someone who is "morbidly obese" - or in ADA terms, someone whose weight "substantially limits one or more of the[ir] major life activities" - then accommodation may be in order. And termination may lead to discrimination claims (unless there is a legitimate non-discriminatory reason, of course).

But that Abercrombie cashier canned because she *gasp* gained five pounds, probably not protected... by federal law. Keep in mind that state laws may expressly protect weight. For example, if Hooters fired a waitress for putting on weight in Michigan, she might have a claim.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.