It Ain’t Over…Managing Weighty Workers Before They Manage You

employee obesityBecause this is exactly what you want to hear after you’ve gorged yourself on turkey, stuffing, and pumpkin pie over the last several days . . .

Earlier this month, the Centers for Disease Control issued a report confirming what we already know: Americans are getting bigger, but not necessarily better. Bigger, as in, time to cut out the butter.

According to the CDC’s report, nearly 38% of Americans are considered obese (defined as anyone with a BMI ≥ 30). Add to that the American Medical Association’s recognition in 2013 of obesity as a disease and you are talking about a lot of “diseased” Americans (which will soon enough lead to a lot of deceased Americans, but I digress; pardon me while I step down from my [plyo]box).

Disease? You can probably see where this is headed…

So, why should employers care about obesity?

Obesity is not explicitly identified as a protected category under any federal employment law. The EEOC, however, has long “suggested” that abnormal deviations in weight could be the basis for finding an impairment under the Americans with Disabilities Act. The EEOC has not issued formal guidance on the issue other than to say that while being overweight is not an impairment by itself, severe obesity (a body weight more than 100% over the norm) clearly is an impairment.

In litigating this issue, employers often seek early dismissal of disability claims brought on the basis of “severe obesity.” Here’s the skinny on how those decisions have come out: generally not good for the employer.

In many recent cases, judges have denied these motions, holding that an employee’s severe obesity could constitute a disability. What remains to be seen is where courts ultimately will draw the disability line, i.e., is a pleasantly plump employee “disabled”? (And this all puts aside the question whether that same employee has other “disabling” conditions related to his/her spare tire, junk in the trunk, etc.)

Further, you can’t forget about state and local laws. For example, just last month, a former manager for Coach, Inc. filed suit under Michigan’s Elliott-Larsen Civil Rights Act, MCL § 37.2102. In the complaint, the manager accuses her supervisors of weight discrimination after she put on more than 100 pounds over the course of the last couple of years leading up to her termination. The employee alleges that the supervisors encouraged her to join Weight Watchers, take synthetic weight loss supplements, and undergo bariatric surgery; the supervisors also allegedly changed the dress code to require clothing that the plaintiff no longer could fit into. See DeLorean v. Coach, Inc., No. 15-cv-13704 (E.D. Mich. 2015).

Not the kind of baggage Coach wants to be known for.

Employers, as we move through the season of eat, drink, eat some more, and be merry, and more employees roll closer to (or right across) the obesity line, take a conservative approach: think twice before disciplining a large laborer if the performance issue could be construed as related to a “disability.” In case of doubt, call your attorney before taking adverse employment action.

End note: if some of your employees are on the verge of an obesity diagnosis and want to do something about it, or they are interested in keeping their fitness goals on track, this Best of Philly Trainer can whip y’all into shape through a corporate boot camp (only voluntary participation, of course). Better than a membership to the Jelly of the Month Club, don’t ya think?)

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