Is Obesity a Disability under the American With Disabilities Act? The EEOC seems to think so.

On September 30, 2010 the Equal Employment Opportunity Commission filed suit against an employer, Resources for Human Development, Inc. (“RHD”), alleging that RHD discriminated against its employee, Lisa Harrison (“Harrison”), in violation of the Americans With Disabilities Act (“ADA”) on the basis of her alleged disability, severe obesity.

The EEOC, on behalf of Harrison, alleged that RHD fired Harrison in September, 2007 because RHD regarded her as disabled and substantially limited in a number of major life activities, including walking. The EEOC alleges that Harrison was able to perform all of the essential functions of her position and that RHD wrongfully terminated Harrison’s employment because RHD regarded Harrison as disabled. This is a significant indication that the EEOC intends to include obese employees within the protection of the ADA. The latest Gallup-Healthways Well-Being Index shows that 63.1% of adults in the U.S. were either overweight or obese in 2009. That was an increase from 62.2% the previous year. The same survey finds that 36.6% of Americans are overweight and 26.5% obese.

In January 2009, the ADA was significantly expanded in many ways by Congress’s enactment of the Americans With Disabilities Amendments Act (“ADAAA”). Generally, under the ADA, an employee may claim that he or she is entitled to the protection of the ADA because he/she is: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of an impairment; and/or (3) is regarded as having an impairment.

The ADAAA, among other things, broadened the kinds of major life activities in which an employee may be “limited” and also expanded the “regarded as” prong of the definition of “disabled” as follows:

THE ADA WAS CHANGED FROM: “regarded as “substantially limited in a major life activity,”

TO: “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

While Harrison’s termination occurred in 2007 and, therefore, this lawsuit will likely be based upon the ADA prior to its 2009 expansion, this lawsuit is a good example of the growing kinds of unique claims that employers will likely face under the ADAAA.

Experts report that the broadening of the scope of the ADA, along with the challenges of our economy, will lead to a significant increase in employee’s efforts to seek the protection of the ADA. Aside from legitimate claims, oftentimes, in an effort to avoid termination, layoff, reduction in force, etc., employees will file questionable claims seeking the protection of a federal statute, such as the ADA, so that employers will delay their termination in order to avoid being sued for retaliation. This tactic has become known as “pre-taliation.”

The Schwarzberg & Associates Employment Law and Compliance Team has extensive experience in developing effective policies, procedures and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact one of our members; Steve Schwarzberg or Lisa Kohring at (561) 659-3300 to obtain more information about our firm and its various employment law compliance and defense services.