Obesity affects nearly 1 in 3 Americans and has become so pervasive that the American Medical Association (“AMA”) declared it a disease in 2013. Despite accounting for more than 30% of the population, in the workplace overweight employees are statistically disadvantaged and discriminated against. Academic studies from both Yale and Vanderbilt say that overweight workers experience unfair and negative treatment 12 times more than their thinner co-workers.

The Yale study found that weight-based discrimination affects obese workers in everything from hiring to promotion to retention of employment.  The Vanderbilt study said that women suffer more than men in this regard, resulting in even lower pay (women of all sizes statically earn less than men), more physically demanding jobs, and less customer-facing responsibilities. If the AMA considers obesity a disease, and these studies find that employees are being discriminated for it, shouldn’t the law provide a remedy for workers whose condition may be irrelevant to their job responsibilities and possibly beyond their control?

Among the states, only Michigan has a statute prohibiting weight discrimination (the other 49 states do not recognize weight as a “protected class”). That means plaintiffs in New Jersey must look to the NJ Law Against Discrimination (“NJLAD”) or seek relief under the federal Americans with Disabilities Act (“ADA”).

To prevail on a discrimination claim under the federal ADA, a plaintiff must show their weight qualifies as a “disability” under the Act, defined as:

1. A physical or mental impairment that substantially limits one or more major life activities;
2. Plaintiff has a record of such an impairment; or
3. Plaintiff is regarded as having such an impairment.

The NJLAD definition of disability includes any “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders.” 

In Viscik v. Fowler Equipment Co.,  a 2002 decision, the Supreme Court of New Jersey stated obesity may qualify as an actionable disability under the NJLAD, but only if the individual is “morbidly obese”, defined by the Centers for Disease Control as “100 pounds over ideal body weight, [with a body mass index] of 40 or more, or [age] 35 or more and experiencing obesity-related health conditions, such as high blood pressure or diabetes.” The Court found Ms. Viscik qualified for NJLAD protection because his obesity had caused related health conditions, such as a heart condition, obstructive pulmonary disease, and mobility limiting knee problems.

With the AMA’s 2013 declaration that obesity is a disease, today’s workers  should have an easier time qualifying for New Jersey and federal legal protection, since “illness” is included within the meaning of disability. 

In an unpublished opinion (persuasive but not precedential), 2015 WL 9694404, Barbara Sheridan v. Egg Harbor Twp. Bd. of Ed. and Terri Chase, decided January 7, 2016, the New Jersey Appellate Division reinstated Plaintiff’s case, which the trial court had dismissed as a matter of law.  Barbara Sheridan served the District as a custodian.  She claimed the District had unfairly – and without good cause — discharged her for obesity, in violation of the NJLAD.  She also said her floor supervisor, Defendant Chase, had made repeated disparaging remarks at work about her weight, in the presence of other workers, which created a hostile work environment for her. The District said it discharged her for legitimate and non-discriminatory reasons, in that her weight prevented her from doing her job duties properly and safely, and management had observed her appearing overexerted and flushed.  It had her tested for fitness-for-duty and claimed the independent medical evaluator determined she had failed several parts of the exam, which provided good cause for termination.  To the extent Defendant Chase had said negative things about Ms. Sheridan’s weight, said the District, those comments were “benign” and not so severe or pervasive as to create an actionable LAD claim of hostile work environment.

Plaintiff said the District’s stated reasons and justifications were lies, to mask its true intent, which was to discriminate against her on the basis of her weight. She said the lifting tests and other components of the mandatory fitness-for-duty exam were more challenging than her job duties and unrelated to them. She told the trial court that she had competently performed her job for over eight years, and that her alleged difficulties with portions of the fitness-for-duty exam did not justify. Plaintiff also charged that Defendant Chase aided and abetted the District’s discriminatory acts.

The Appellate Division reinstated Plaintiff Sheridan’s claim, because genuine fact issues existed as to Plaintiff’s claims, the District’s defenses, whether the “fitness for duty” evaluation fairly tested Plaintiff against her actual job description, whether Defendant Chase’s remarks were stated at all, and whether they were “severe and pervasive” enough to rise to the level of a hostile work environment. Plaintiff said Defendant Chase’s remarks as her supervisor made her feel humiliated and embarrassed. It was a jury question whether Chase’s comments could reasonably be deemed demeaning, severe, and pervasive. Hence, the Court reversed the trial court’s summary judgment decision and remanded the matter for a jury trial.

Following this blog post is a concise outline under the ADA of how federal courts should treat obesity and food addiction claims made in connection with workers’ jobs, including requests for reasonable accommodation.  This reference, created by my colleague, David Evans, covers general ADA principles, yet narrows its consideration of obesity claims, especially on the issue of “voluntary conduct” allegedly contributing to the subject condition.

New Jersey employees suffering workplace discrimination for being overweight should consult with an experienced New Jersey employment lawyer. Weight discrimination affects more workers every day, and this area of the law is ripe for enforcement. Depending on the facts of your case, you may be eligible for compensation and other relief under state and federal laws.

The Kingston Law Group’s lawyers regularly represent clients in New Jersey employment discrimination cases. Located in Kingston, NJ, we know how to fight for a good cause. Call us at 609-683-7400 or contact us to schedule a reduced fee initial consultation.  We will listen to your facts, explain the law, and help you create a pathway to social and economic justice.  Call now.  You will be glad you did.

 

David Evans, Federal and State Guide to Employee Medical Leave, Benefits and Disabilities Laws, Thomson Reuters, June 2018 Update (Reprinted with permission of author)

Chapter 5. The Americans With Disabilities Act of 1990

• 5:123. Obesity and Food Addiction—The ADA and Obesity

Definition of person with a disability

The Americans with Disabilities Act (ADA) prohibits discrimination in employment against a qualified person with a disability. A person with a disability is a person who:

1. has a physical or mental impairment that substantially limits one or more major life activities;
2. has a record of such an impairment; or
3. is regarded as having such an impairment.

Physical or mental impairment

The ADA regulations define physical or mental impairment as:

1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; neuromuscular; special sense organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Major life activities

To gain the protection of the ADA, a person must have a physical or mental impairment that substantially limits one or more major life activities. These are basic activities the average person can perform with little or no difficulty. These include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working. sitting, standing, lifting, reaching, and mental and emotional processes such as thinking, concentrating, and interacting with others as examples of major life activities.

Substantially limited

Another part of the definition of disability requires that the impairment substantially limit one or more major life activities. Substantially limits means that the individual must be:

1. Unable to perform a major life activity that the average person in the general population can perform; or
2. Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

The factors to be considered in determining whether an individual is substantially limited in a major life activity are:

1. The nature and severity of the impairment;
2. The duration or expected duration of the impairment; and
3. The permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.

Voluntary conduct that contributes to the disability

A disability is still entitled to protection even though it may have been caused or exacerbated by voluntary conduct. In a case holding that morbid obesity is a disability, the First Circuit reasoned that the Rehabilitation Act (similar to the ADA) did not protect a disability based on how an individual became impaired, or whether an individual contributed to his or her impairment. For example, there is no doubt that the Act applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as substance addiction, AIDS, diabetes, cancer resulting from cigarette smoking, and heart disease resulting from excesses of various types. Voluntariness is relevant only in determining if a condition is substantially limiting

Record of impairment

The ADA’s definition of the term individual with a disability includes an employee or job applicant having a history of a mental or physical impairment that substantially limits one or more major life activities

Regarded as impaired

The third section of the ADA’s definition of the term disability covers employees regarded as having a disability. This includes an employee who:

1. Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
2. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
3. Has no mental or physical impairment but is treated by a covered entity as having a substantially limiting impairment

ADA case law illustrates that the second part of the regarded as test is triggered where fears, prejudice and repugnance toward a condition are widespread.⁹ This has been extended to morbid obesity.

Employers may improperly assume that a person’s disability such as obesity will cause problems with productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co-workers and customers. When an employer cannot articulate a nondiscriminatory reason for the employment action, an inference that the employer is acting on the basis of myth, fear or stereotype can be drawn. An employee claiming to be regarded as disabled will not have to prove that the employer’s perception is wrong.