Tuesday, October 5, 2010

Do you know? Expanded ADA may now cover obesity discrimination

The EEOC has sued a Pennsylvania-based nonprofit, claiming that its termination of a severely obese employee violated the ADA. Traditionally, obesity, in and of itself, is not a protected disability. I've previously discussed this issue. See Is “fat” the new protected class? The ADA, however, not only protected those with actual physical or mental impairments, but also those who are “regarded as” having a physical or mental impairment. Moreover, with the ADA’s recent amendments, one can qualify under the definition of “regarded as” disabled whether or not one’s real or perceived impairment actually limits or is perceived to limit a major life activity.

This story illustrates two important points for businesses:

  1. The current iteration of the EEOC is aggressively pursuing judicial expansion of the employment discrimination laws. Grooming and dress policies, criminal background and credit checks, and expansive definitions of disabilities are all on the EEOC’s hit list. HR policies and practices that tread in these dangerous waters risk drowning in a sea of EEOC enforcement actions.

  2. The ADA is now so broad that a fired employee may be able to make out a claim of disability discrimination based on obesity. Indeed, I predict that five years from now, businesses will be faced with a wealth of case law recognizing a host of non-traditional disabilities under the ADA. Every physical or mental impairment that a court recognizes as an ADA-protected disability is another impairment for which businesses much provide a reasonable accommodation. I believe, though, the the broader the ADA becomes, the more watered-down its message also becomes. Expanding the ADA to cover non-traditional disabilities undermines the important policy the ADA is meant to further—leveling the employment playing field for those with with real and legitimate substantially limiting impairments.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.