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AMERICANS WITH DISABILITIES ACT »
Obesity—The next wave of employment lawsuits?

| July 19, 2012 | News & Comment

One-third of adult Americans are obese.

The number of states with obese populations exceeding 30% is on the increase.

Now, factor in that obesity may be considered a disability for purposes of employment law, and the Americans with Disabilities Act (ADA) now recognizes an expanded concept of individuals who are considered “disabled.” Can an increase in discrimination charges and lawsuits based on obesity be far behind?

Not if the Supreme Court of Montana’s July 6 decision in a lawsuit brought by Eric Feit against BNSF Railway Company is any indication. Feit sued the railway when it refused to hire him as a conductor trainee after a physical exam concluded Feit exhibited “significant health and safety risks associated with extreme obesity.” Granted, this case was decided by a Montana state court—not the U.S. Supreme Court. Nevertheless, the decision illustrates the possibility of a future shift in the disability litigation landscape.

To reach its decision, the Montana court looked to the federal Americans with Disabilities Act for guidance. This included a review of Equal Employment Opportunity Commission regulations, interpretive guidelines, and the EEOC’s Compliance Manual. Typically, physical characteristics, without more, have not been considered “impairments” covered by the ADA. For that reason, courts in the past had held that to be a disability covered by employment law protection, an individual’s obesity must result from a physiological disorder or condition. The Montana court went a different direction.

The 2008 amendments to the ADA significantly expanded the definition of “disability” and increased the number of people who could potentially be covered by the law. The EEOC’s Compliance Manual defined “severe obesity” as body weight more than 100% over the norm. The manual went on to state that extreme deviations may constitute an impairment. Based on these concepts, the Montana court found that severe obesity – even in the absence of any physiological disorder or condition – may in and of itself be a covered disability, provided the obese condition substantially limits the individual’s major life activities.

Recognizing obesity in the absence of a physiological disorder or condition as a “disability” for purposes of employment law is a significant shift that could potentially apply to many employees. Is the Montana court a prophet that other courts will follow, or a lone outlier? Time will tell, but recent trends suggest Montana will not long be alone in its conclusion.

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Charlie Plumb

About the author

Charlie Plumb is a labor and employment attorney with the McAfee & Taft law firm. He represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations.

As part of his labor practice, Charlie represents unionized employers in collective bargaining negotiations with labor unions, arbitrates grievances, and defends management against a variety of claims before the National Labor Relations Board and Department of Justice and in state and federal courts. He also represents employers who seek to maintain a non-unionized workforce by counseling management on union avoidance strategies and by providing training and advice to management and supervisors. His clients include numerous municipalities throughout Oklahoma and companies engaged in the manufacturing and distribution, construction, energy, public utility, technology and business services industries.

Charlie is a member of the American Bar Association’s Labor and Employment Law Section and the Oklahoma Bar Association’s Labor Council. He is also the designated representative of McAfee & Taft as the exclusive member firm representing Oklahoma in the Employers Counsel Network, a nationwide affiliation of leading law firms providing legal assistance and representation to employers.

Charlie is a frequent speaker and author on workplace issues. He is also co-editor of the Oklahoma Employment Law Letter, a monthly review of new court decisions, regulations and laws that affect state employers.

Charlie’s achievements have earned him inclusion in The Best Lawyers in America (labor and employment law), Oklahoma Super Lawyers (employment and labor, civil litigation defense), Benchmark Litigation and Chambers USA Guide to America’s Leading Lawyers for Business, where he has been lauded as “an impressive public speaker who utilizes his vast experience to effectively defend clients.” Researchers at Chambers & Partners also quoted market observers as admiring him for his “practicality of advice and specialized knowledge of complex legal issues,” with sources commenting that he “immediately commands respect, is always up to date and knows how to handle a problem.”