By Natascha B. Riesco

It may soon be easier for obese plaintiffs to claim disability discrimination.  The American Medical Association (AMA) recently declared obesity as a “disease,” which may have supersized implications for employers as they deal with reasonable accommodation requests and disability discrimination claims from overweight employees.  So is obesity a disability?  Can employers defend these claims on the basis that it is not? And what’s in store for employers in this arena?  

Is Obesity a Per-se Disability?

Not quite.  To qualify as disabled under the ADA, an individual must have a physical or mental impairment that substantially limits one or more major life activities. In the original regulations that implemented the ADA, the EEOC took the position that “except in rare circumstances, obesity is not considered a disabling impairment. “ The EEOC’s Compliance Manual, however, did note that “severe obesity” (which was defined as “100% over the norm”) was “clearly an impairment” and noted that severely obese people often have underlying disorders that would likely qualify as impairments.  Following passage of the ADAAA, in 2009 however, the EEOC took out the language in its Manual and removed its prior definition of obesity indicating that “the analysis has been superseded by the ADA Amendments Act.” See http://www.eeoc.gov/policy/docs/902cm.html.

Since the passage of the ADAAA, the EEOC has brought two lawsuits involving morbidly obese plaintiffs.  In both, it obtained consent decrees. In one of them, however, a federal court issued an opinion holding that severe obesity was a disability under the ADA, even absent proof of a physiological basis. 

The AMA’s Obesity Stance 

Since then, the AMA declared that obesity is a disease (not just a medical condition). In June 2012, the AMA noted that obesity required “a range of medical interventions to advance obesity treatment and prevention.”  It also noted that recognizing obesity as a disease would encourage a change in the way people perceive, and that the medical community deals, with obesity. Obesity for adults is defined as having a body mass index (BMI) of 30 or higher.  

During an interview in September 2013, EEOC Commissioner Chai Feldblum acknowledged that “the AMA’s official recognition [of obesity as a disease] will certainly not hurt plaintiffs.”   Although Commissioner Feldblum noted that the basic legal framework of the ADA has not changed and stated that the AMA’s policy does not alter the EEOC’s enforcement approach or efforts, she simultaneously noted that courts were beginning to reassess the view that obesity was not limiting enough to qualify as a disability. 

How to “Slim” Down Potential Employer Liability

In the wake of the AMA’s declaration, it may be more difficult for employers to argue that obesity is not a disability.  Employers may also expect to see an increase in claims brought by obese individuals.  Even individuals who are overweight or moderately obese may jump on the bandwagon and argue that they too may qualify as disabled.

Also, under the ADAAA’s “regarded as” prong, employees need only show that the employer took action based on its assumptions or beliefs about the employee’s obesity, even if in reality that impairment did not substantially limit a major life activity. Accordingly, even if the plaintiff does not have an actual disability, simply showing that she was subjected to an action based on the perception that her weight was a physical impairment, may be enough.  Similarly, jokes about an employee’s weight may also lead to claims of disability harassment.

To minimize potential liability, employers must be more vigilant about potential obesity related claims.  This not only means recognizing that the prohibition against discrimination may extend to obese employees, but also an employer’s efforts to handle requests for reasonable accommodation from overweight individuals.  And employers must be careful to avoid any suggestion that employees who are overweight are prevented from doing certain jobs on account of their weight. 

For additional information on obesity as a disability, please contact the author, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.