Is Obesity a Diversity Concern?

Ronald Kratz II, who weighed 680 pounds while he was working at BAE Systems, said his obesity never kept him from doing his job or receiving high performance ratings during his 16-year career. But one day in 2009, when he reported for an overtime shift on his materials handling job, Kratz was told he was too heavy to continue performing the work, and his employment was terminated.

He immediately filed a complaint with the Equal Employment Opportunity Commission, or EEOC, which investigated his claims and found that BAE fired Kratz because of his disability — morbid obesity — and because it regarded him as disabled. The commission said at the time of his discharge, Kratz was qualified to perform his essential job functions. The EEOC also said the company did not engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform his duties. Kratz didn’t ask for any accommodation except a seat belt extension for the forklift he sometimes had to operate. He never received the extender.

“Many of the cases we’ve seen involving morbid obesity haven’t necessitated any accommodations at all; the problem is usually that the employer simply regarded the individual as being incapable of doing a job due to morbid obesity,” said Justine Lisser, an EEOC spokesperson.

Lisser said the EEOC considers obesity to be an impairment that will be a disability if it substantially limits a major life activity or is regarded as being a disability. Impairments causing or resulting from obesity — not just morbid obesity — can be disabilities as well if they substantially limit major life activities or are regarded as disabilities. Such disabilities must be granted reasonable accommodations.

In 2008, Congress enacted the Americans with Disabilities Act Amendments Act, or ADAAA. In doing so, it declared its intent that the definition of “disability” be construed broadly to afford greater protection to employees. Although the ADAAA does not change the definition of disability, it broadens the term by modifying language within that definition. Following the enactment of the ADAAA, it is more likely an individual’s physical or mental impairment will be considered a disability under the Americans with Disabilities Act, or ADA.

“It doesn’t mean all obese people are going to be disabled,” said Wendy Lazerson, a partner in Sidley Austin’s labor and employment group. “There are obese people, such as sumo wrestlers, who aren’t limited from a major life activity because of their obesity. On the other hand, there are people who are not obese, but overweight, who have substantial breathing problems due to being overweight. Those people could be considered disabled.”

According to law firm Nexsen Pruet, the EEOC’s Interpretive Guidance, which is incorporated into the federal regulations on the ADA, concluded prior to the ADAAA that “except in rare circumstances, obesity by itself is not considered a disabling impairment.” However, when the 2011 Interpretive Guidance was published in the Code of Federal Regulations, this language was omitted, suggesting that the EEOC no longer considers obesity to be a disability only “in rare circumstances.”

The Medical Community’s Stance

In June, the American Medical Association, or AMA, officially recognized obesity as a disease, a move that some say could lead organizations to pay more attention to the condition and spur more insurers to pay for treatments.

“It doesn’t change anything from a legal perspective,” said Myra K. Creighton, a partner at Fisher & Phillips LLC. “Employees still need to pass the test that they’re substantially limited, but it does lend credence to the notion that obesity standing alone is an impairment because it’s a disease.”

According to Jonathan A. Segal, a partner at Duane Morris LLP, the AMA’s position will impact the EEOC’s regulations moving forward.

“Employers are not medical experts, and they look to medical sources for guidance in determining what is or may not be a disability,” he said. “When the AMA raises something from a condition to a disease, I believe it’s going to have a significant impact on what the EEOC and courts do in this area.”

Morgan Downey, an advocate for obese people and publisher of the online Downey Obesity Report, said the AMA’s stance does not affect employers as much as the Affordable Care Act does. He estimates some 65 million Americans with obesity will be affected by the ACA.

Since Jan. 1, 56 million people with group or individual insurance have new security against exclusions for pre-existing conditions, rescissions of their contracts, rights to independent review of denied claims and new protections from employer wellness program abuses. They also will be eligible for intensive counseling for adult obesity.

“Employers aren’t aware of these changes,” he said. “When they think of preventative services under the ACA, they think about flu shots and mammograms. They don’t think obesity.”

Downey said employers also don’t think of obesity when creating their wellness plans. Often such programs cater to those who are already pretty fit and want to stay that way, or who want to go to the gym more regularly and lose a small amount of weight. “They’re not designed for people who have more than 100 pounds to lose,” he said. “They tend to be less aggressive with the individuals with a higher body mass index, and it’s those levels that have the highest risk of health concerns.”

Time for Training and Awareness

Sidley Austin’s Lazerson said the AMA and ACA’s changes are altering employees’ and employers’ perception of obesity. People used to think of weight as voluntary and obesity as a choice, but slowly that notion is changing. In any case, the cause of obesity does not matter when it comes to litigation. There has never been a prerequisite under the ADA that a disability must have been caused by events or circumstances out of one’s personal control.

“We still must accommodate someone who gets lung cancer from smoking,” Duane Morris’ Segal said. “Someone who may overeat and may be obese should and must be given the same consideration for reasonable accommodations.”

According to Robin Shea, a partner at Constangy, Brooks & Smith, many employers do not accommodate obese individuals the way they do employees with other disabilities. Similarly, many do not consider obesity in the realm of diversity.

“When we think of diversity, we tend to think of things like sex, race, religion and disability, but it includes many things, among them body size,” she said. “We want the best talent there is, and that means respecting people who may be overweight or underweight. Being inclusive means being respectful and accommodating employees when you can.”

Some think the solution is training, which should start at the top. According to Downey, weight is traditionally not a subject covered extensively in medical school, so the health dangers of being heavy aren’t a priority for busy physicians. While the AMA’s recent stance might change that, when it comes to the corporate world, diversity leaders need to work more closely with their HR partners to bring awareness to their organizations.

“As we’ve trained and made people sensitive to the issue of sex harassment and race discrimination, we have to do the same thing now with obesity,” Lazerson said. “We need to make people aware that they may not discriminate against people because of obesity, and managers have to be extra sensitive to that and be respectful in the way they treat people. We have to revise our harassment policies and make sure employees are aware. This is an element of diversity that can’t go unnoticed.”