Job applicants and employees need not actually be disabled to qualify for protection under the Americans with Disabilities Act (ADA), the habilitation Act (RHA), and many state disability laws. A person may still be protected under the "regarded as disabled" or "perceived disability" definition of disability, if others in the workplace merely consider him or her to be disabled.
The availability of perceived disability discrimination claims means that the words and actions of employers, depending on what they manifest about an employer's perceptions, may convert an individual who is not covered under the disability laws into one who is covered.
In recent years there has been a rise in the number of perceived disability discrimination claims. (1) This is particularly true in regard to perceived disability claims brought by overweight job applicants and employees. No doubt, the growing "obesity crisis" and greater awareness of potential rights among overweight individuals are contributing to the growth in these types of claims. In addition, it appears that developments in the law that make it increasingly difficult for plaintiffs to establish obesity-related actual disability claims are leading more overweight job applicants and employees who feel unfairly treated by an employer to pursue perceived disability claims. Perceived disability claims have been described as "the most promising legal development for protection against obesity discrimination," (2) and it has been suggested that many overweight plaintiffs would be better off not pursuing actual disability claims, but instead file only perceived disability claims. (3) Our review of recent cases indicates both that it is not unusual for overweight plaintiffs to follow this strategy (i.e., filing only a perceived disability claim), and that compared to obesity-related actual disability claims, plaintiffs are experiencing greater success with perceived discrimination claims in opposing employers' summary judgment motions and getting to trial.
The foreseeable continued growth in obesity-related perceived disability claims, combined with the fact that employer conduct can play a critical role in the determination of whether an overweight individual is considered to have a perceived disability, make it important for employment lawyers and human resource (HR) professionals to have a thorough understanding of obesity-related perceived disability claims. What employer actions are likely to contribute to obesity-related perceived disability claims? What legal defenses have been most successful? These and related questions are addressed in the three sections of this article. The first section focuses on federal law, discussing evolving legal standards, and identifying specific evidence that has been found to either support or refute obesity-related perceived disability claims. The second section briefly discusses the key ways in which some state disability laws provide overweight employees greater protection against discrimination based on perceived disability than does the federal law. The final section provides practical guidance that should help employers avoid the risk of litigation involving the growing number of overweight employees, and assist them in assessing the merit of obesity-related perceived discrimination claims if they arise.
OBESITY-RELATED PERCEIVED DISABILITY CLAIMS UNDER FEDERAL LAW
The RHA prohibits employment discrimination against qualified individuals with disabilities by holders of government contracts, recipients of federal grants, and government agencies and departments. The ADA extends this prohibition to private employers and state and local entities. Because the RHA and ADA have parallel definitions of "disability," cases decided under either act are expected to apply to claims brought under the other. (4) The two acts are discussed together in the following sections.
Definitions of "Disability"
The ADA and RHA prohibit covered employers from discriminating against persons with a "disability," defined as follows:
1. A person with a physical or mental impairment that substantially limits one or more of the individual's major life activities;
2. A person with a record of such impairment; or
3. A person who is regarded as having such impairment.
To qualify as a member of a protected class, an individual must show that he or she meets the criteria for at least one of these definitions of disability. The first definition focuses on the individual's objective condition and will be referred to as an "actual disability." The second definition simply provides protection for past actual disabilities. The third "regarded as" definition of disability is qualitatively different from the first two in that, rather than focusing on the individual's actual physical or mental condition, it focuses on an employer's perceptions of the individual and how he or she is treated in the workplace. Accordingly, a condition meeting the third definition is referred to as a "perceived disability." The criteria for what constitutes an actual obesity-related disability is relevant to the determination of whether an employer perceived an individual as being disabled within the meaning of the federal disability laws. Therefore, although the focus of this article is obesity-related perceived disabilities, we begin by discussing the proof required to establish an obesity-related actual disability.
Obesity-Related Actual Disability
Neither the ADA nor the RHA specifically mention whether obesity may be an actual disability. However, EEOC regulations implementing the ADA specifically exclude height or weight that is within the "normal" range and not the result of a physiological disorder, (6) and judicial decisions have consistently reflected the regulation's view that obesity will be considered a covered disability only in "rare circumstances." (7) Plaintiffs have succeeded in establishing obesity as a covered actual disability only where they have been able to prove: (1) they are either morbidly obese (e.g., 100 percent over their ideal weight) or suffering from obesity that is a symptom of a physiological condition (e.g., due to a thyroid condition); and (2) their obesity, or obesity-related condition(s), substantially limits one or more major life activities (8) (e.g., walking, seeing, hearing, speaking, breathing, learning, or working). (9)
Three points regarding the legal standards for an obesity-related actual disability claim warrant emphasis. First, while the EEOC guidelines and some lower courts consider morbid obesity by itself an impairment under the law, ultimately, even morbidly obese plaintiffs (or those who can demonstrate a physiological cause for their obesity) must be able to establish that their obesity substantially limits one or more major life activities. (10) Thus while being morbidly obese makes it easier for a plaintiff to establish an actual disability, it is not enough to prevail.
Second, very few individuals who experience weight-related discrimination in the workplace are able to meet the legal standards for establishing an obesity-related actual disability. While overall, approximately 31 percent of the adults in the United States are obese, less than five percent of the adult population is morbidly obese.
(11) The vast majority of obese Americans would have to prove that their weight has a physiological cause in order to establish an actual disability under the ADA or RHA. This is not an easy task, as although the medical community considers obesity to be the result of physiological, psychological, and environmental factors, the exact causes of obesity are neither fully understood nor widely agreed upon.
(12) Estimates of the percentage of people whose obesity is explained by physiological causes also vary, with some estimates placing it as low as five percent.
(13) Because experts disagree about the precise cause or causes of obesity, plaintiffs will have a difficult time discharging their burden of proving a physiological cause for their condition. In the reported cases, very few plaintiffs have even attempted to offer evidence of a physiological cause for their obesity.