Last week, we discussed the effect obesity would have on employers in the future because of weight related health issues. A very interesting article was published in the Texas Lawyer this week addressing the rising number of Americans with Disabilities Act claims based upon obesity. The take away from the article, which at this point is only available by subscription, is that the EEOC and others are filing more and more obesity based lawsuits. The "stronger" cases have situations where the obesity is caused by some other type of impairment be it mental or physical – there was some other explanation other than overeating.
The 2008 amendments to the ADA expanded what is considered a disability. Though the EEOC does not track obesity cases, the article maintains that there has been a spike in these types of claims based upon a review of recent cases. We recently profiled one of the cases discussed in the article, which involved a Louisiana woman who claimed she was fired because of her weight. The EEOC settled with the employer for $125,000.
So what is an employer to do? Number one, treat requests from overweight employees for some type of accommodation seriously. It could be covered by the ADA. Second, and this is totally self serving, talk to a lawyer. As with most employment situations, there is no one-size-fits-all answer and a review of the circumstances and laws in your jurisdiction is necessary.
These days, it is usually a good assumption that an alleged disability actually falls within the ADA. Assuming it does, the employer then needs to make a determination as to whether a reasonable accommodation will permit the employee to fulfill the essential functions of his/her job. Usually this will entail an analysis of job descriptions (which are critical for this type of analysis) and whether the employee can do the work. At this juncture, it is probably better for employers to simply assume that obesity is covered and make the reasonable accommodation analysis.