EEOC sues on obesity-as-disability theory

by Walter Olson on October 6, 2010

Obesity as such has generally not been included as a disability in the past, so the case may signal a newly activist stance at the Equal Employment Opportunity Commission [EEOC press release, AP]

P.S. As commenters point out, “obesity-as-perceived-disability” would be more precise. The law’s recent extension to complainants “perceived as” disabled is proving, just as advocates hoped and defendants feared, to be a major engine of expansion of legal coverage to complainants who in the past could not claim disabled status. More: John Bratt (recalling “Simpsons” episode).

{ 20 comments }

1 Chris Hoey 10.06.10 at 10:22 am

This is a stretch (no pun intended), as the ADA never directly covered obesity as a disability within its statutory definition.(Some states do, however.) Your caption is somewhat misleading, as the suit only alleges it is a “perceived” disability, and that aspect is frightening as the defense of such lawsuits is very difficult. The EEOC does not have to prove obesity is a disability, only that her employer thinks it is. (I would love to ask the EEOC if this means the employer must “reasonably accommodate” this “perceived” disability by providing extra wide heavy duty chairs, etc.?)

2 Jon Hyman 10.06.10 at 10:42 am

Chris, to answer your question, employers have no obligation to accommodate a perceived disability. But, what is scary about “regarded as” disabled claims is that an employer can qualify under that definition whether or the perceived impairment actually limits or merely is perceived to limit a major life activity. It has the possibility to convert myriad non-traditional and un-covered disabilities into disabilities protected by the ADA (such as obesity).

3 Amy Alkon 10.06.10 at 10:46 am

Is being addicted to crack a disability now, too?

4 No Name Guy 10.06.10 at 11:12 am

Amy
Yes. Its a simple extrapolation of the “alcoholism is a disease / disability” thing. Why are illegal, addictive, intoxicants any different from legal ones?

(Note, not that I buy that load of bull, but that’s what the EEOC would argue I suspect).

And being fat isn’t a disability. Wow….I can see how this would be horrible public policy.

Let’s count the ways: I’ll start it off.

- fat fire fighter needs to be accommodated by having a power lift on the ladder truck to get them up there, since it’s too hard for them to climb it like everyone else. That’s reasonable, isnt’ it?

– A doctor or nurse plumps up to the point where they can’t roll a patient over in their bed (pretty typical for a nurse to do), or walk their rounds without a scooter, etc. Yeah….no problems there.

5 ras 10.06.10 at 11:25 am

So could an NFL coach cut a player who shows up for training camp grossly overweight? Why or why not?

6 kimsch 10.06.10 at 1:09 pm

Flight attendants who can’t fit in the aisles or on the jump seats…

7 Frank 10.06.10 at 1:29 pm

EEOC alleges “RHD perceived Harrison as being substantially limited in a number of major life activities, including walking”

How does one “perceive” a limitation in the ability to walk? One either is limited or one is not. If it was only a perception, then there would be no limitation in that ability, IOW, no disability, n’est ce pas?

8 anon 10.06.10 at 1:41 pm

“So could an NFL coach cut a player who shows up for training camp grossly overweight? Why or why not?”

Any player can be cut – and any guaranteed money in their contract still needs to be paid to them, unless the team sues to recoup some of that due to a breech of contract. The Miami Dolphins some how were awarded guaranteed money the Saints had paid to Ricky Williams after he was suspended and decided to take a hiatus from the NFL.

9 Bumper 10.06.10 at 1:49 pm

I’m addicted to Overlawyered.

Where’s my check?

10 AMcA 10.06.10 at 2:04 pm

Next up: inability!

11 Aaron Worthing 10.06.10 at 2:36 pm

aye-yi-yi, you guys think of this all wrong.

which is more unreasonable? To discriminate based on a disability, or to discriminate against a person who has no disability, but you perceive them to have one?

Isn’t it the second one? if the condition is not actually disabling, then it makes no sense to pretend like they have this great impairment.

I mean suppose you to be hired as a dock worker. But the foreman heard a false rumor that your right leg was artificial. So the foreman refuses to hire you and even when you prove you have two natural legs, he refuses to out of pride. isn’t that crazier than if the guy actually was missing a leg? i mean lifting heavy things when you are missing a leg is problematic at best. but if you are not, how could it possibly be a problem.

That’s what the “perceived as” prong of the definition of disability is all about. if you are not actually disabled, then the discrimination makes less sense, not more.

Of course some of the confusion here needs to be laid at congresses feet. When you think about it, the ADA is a little upside down. For instance we think of racial discrimination as a classic example of unjustified discrimination. why? because color doesn’t matter. smart people can be white, black, asian, etc.; dumb people can be white, black, asian, etc. Color is not a good proxy for skill, knowledge, character, etc.

But the ADA requires you to have a difference–one that is generally more likely to be relevant than skin color. So for instance, i am nearsighted. that is not a disability under the ADA so if someone fires me for wearing glasses there is no cause of action. But if i was actually blind, i would have a cause of action. but which is more irrational? to discriminate against the guy wearing glasses? or the guy who is actually blind? which impairment is more likely to be relevant. i think the answer is pretty obvious.

if you start by asking about the rationality of the discrimination in the first place, the idea of protecting those incorrectly perceived to be disabled, makes a lot of sense.

Btw, someone asked if being on drugs counted. the answer is yes but only if you are getting treatment. So a recovering addict has some protection, but if the guy is getting high, tough on them. they can be fired and as far as the ADA is concerned, they are not disabled.

Now i do think that if a person has been clean and sober for five years, that discriminating against them based on that past, or because now he won’t go drinking with the guys is irrational, and rightfully banned. but i think there should be no protection until the addict has more clearly whupped the thing. if i had my druthers, i would change that aspect of the ADA.

12 Bob Neal 10.06.10 at 9:38 pm

Welcome to the EEOC legislating, with an unlimited budget, from its bully pulpit. This is what they do, push an agenda to ensure policy goes well beyond anything ever intended by Congress. And we all get to pay (oh, I mean benefit) for it.

13 Jack Wilson 10.07.10 at 7:44 am

Everyone has disabilities, so technically you can never fire anyone.

14 Aaron Worthing 10.07.10 at 8:34 am

jack

the ADA doesn’t say you can’t fire anyone. just that you can’t do it based on their disability unless it truly affects job performance.

and it is literally no different than what the law says about religious discrimination.

15 No Name Guy 10.07.10 at 10:48 am

Aaron
“the ADA doesn’t say you can’t fire anyone. just that you can’t do it based on their disability unless it truly affects job performance.”

Uhhh….I don’t think so. Even if it DOES affect their job performance, you can’t fire them. You have to accommodate that reduced performance (at least, up to some silly high threshold).

Walter – correct me if I’m wrong on that one.

Here’s another one – construction worker. I start off as a typical, slightly husky bulldozer operator. But, I like my pork rinds so much that I balloon up to the point where I can’t even clamber up into the cab of my D9 any more (much less fit in the operators seat, or do the other routine maintenance that’s expected of an operator, like greasing the tracks, checking the engine oil, etc). So, is my employer required to get a powered lift to hoist my ample back side up into the cab and refit a dozer with a “wide base seat” to accommodate my “disability”? How about having another operator perform the routine maintenance checks normally expected of a ‘typical’ operator?

Shoot…..the Simpsons episode is classic on this very subject. I hope the defendant to the BS EEOC suit plays it in full.

16 VMS 10.07.10 at 6:37 pm

The US Supreme Court’s last case on who is disaabled is here:

http://www.law.cornell.edu/supct/html/97-1943.ZS.html

17 gasman 10.08.10 at 10:44 am

“(I would love to ask the EEOC if this means the employer must “reasonably accommodate” this “perceived” disability by providing extra wide heavy duty chairs, etc.?)”

The employer would only have to use chairs that it perceives to be extra wide and heavy duty.

18 Aaron Worthing 10.09.10 at 10:11 am

No Name

> You have to accommodate that reduced performance

Yeah, as in, if you need a guy to be able to read a report, and he says, “okay, let me convert it to Braille” you have to accommodate that.

> at least, up to some silly high threshold

The word you are looking for is REASONABLE ACCOMMODATION. Don’t forget that word “reasonable.” Everyone else does.

Oh, and once again, that is exactly what the law says about religious discrimination—since 1964.

> So, is my employer required to get a powered lift to hoist my ample back side up into the cab and refit a dozer with a “wide base seat” to accommodate my “disability”?

No, because that accommodation is not reasonable. Unless you happened to have all of that crap just lying around.

VMS

Actually Sutton has been modified significantly by amendments to the ADA.

19 No Name Guy 10.11.10 at 11:21 am

Says you Aaron.

“> So, is my employer required to get a powered lift to hoist my ample back side up into the cab and refit a dozer with a “wide base seat” to accommodate my “disability”?

No, because that accommodation is not reasonable. Unless you happened to have all of that crap just lying around.”

If obesity is a disability, as you say with the braile reader / converter – how is the above NOT a reasonable accommodation? If an employer in an office environment must spend the sums (on the specialized equipment, on the labor to do it, on the possible losses in efficiency due to the time it takes, etc) required to take a perfectly good typed document and convert it to braile for a blind employee, why WOULDN’T a contstruction company have to spend equal sums (on the specialized equipment, the lift and wide seat, on the labor, the lift operator and having some one else do the routine maintenance expected of a typical dozer operator, and possible losses in efficiency) of having to hoist up a morbidly obese but formerly only husky dozer driver?

Do explain how in the one case it’s reasonable (the office environment with the blind) while the other (the obese bulldozer operator) is not.

Especially since:
“No, because that accommodation is not reasonable. Unless you happened to have all of that crap just lying around.”
Well, at my large aerospace employer, they don’t happen to have braile converters here in the office, nor tools that can take the computer design software (on double wide screens to boot) and convert it such that a blind person could be a aerospace designer.

Bottom line: The EEOC is full of it. Obesety is not a disability, period, and no accommodation need be made.

20 Jack Wilson 10.11.10 at 4:56 pm

I want the NBA to accommodate my disabilities of age, height and lack of basketball skill.

Bring back the ‘at will’ principle!

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