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Given that approximately 1/3 of the U.S. workforce is obese, for positions that have physical demands this question is entirely relevant and laden with legal issues.  [The Centers for Disease and Control measure “obesity” as a body mass index of 30 or higher.]  A new lawsuit filed with the Eighth Circuit Court of Appeals may provide guidance to employers on how employers should appropriately respond to applicants who are obese or morbidly obese.

The issue is whether a person is protected by disability laws, here the ADA, because he is obese or morbidly obese.  The language of the ADA does not specifically protect people who are either; however, given the definitions used by medical professionals for morbid obesity these people are generally considered to have a serious medical condition that by itself is a physiological disorder, which would be protected by federal disability law.  [Generally, having a body mass index of 40 or higher and 100 lbs over standard weight is considered morbid obesity.]  Thus, creative employees may argue that by definition being morbidly obese is sufficient to trigger an employer’s obligation to consider reasonably accommodating the person’s physical limitations stemming from his weight and not to refuse to hire them because of their weight.  Employers have argued successfully in the past that morbid obesity is merely a physical characteristic that without underlying symptoms (which would need to be communicated to the employer) is not a physiological disorder that triggers protections under the ADA.

Courts have generally sided with employers on this issue and have been reluctant to expand the protections of the ADA to obese employees and applicants, absent related health issues that would be more clearly protected by the law.  That could change though as the 2008 amendments generally expanded scope of the ADA to protect more workers.  If the court of appeal takes the employee’s side in the recent case and finds that his morbid obesity was protected by the ADA, thereby making the company’s denial of a job to him because of his weight discriminatory, it would be a significant change in the way employers would need to handle employees and applicants who are obese and morbidly obese.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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