the next protected classAre overweight individuals a step closer to becoming a protected class in the United States? Speculation about making obesity the next protected class under the Americans with Disabilities Act is not a new idea. It’s been discussed on and off since at least 2008, when the Rudd Center for Food Policy and Obesity at Yale University published a report revealing that weight discrimination in the workplace occurs as often as racial discrimination.

Also in 2008, Congress approved the Amendment to the Americans with Disabilities Act (“ADA”), expanding the legal definition of “disability,” making it easier for courts to apply the concept of disability to morbidly obese workers.

The possibility that obesity will become a protected class has been raised again recently:

  1. The Rudd Center published an article in the April issue of Obesity reporting that three out of four Americans support efforts to add body weight as a protected class under Civil Rights laws.
  2. Also in April, a district court judge ruled that a lawsuit brought by a plaintiff who claims he was terminated because of “severe obesity” may continue. Judge Stephen N. Limbaugh, Jr. of the U.S. District Court, Eastern District of Missouri, Southeastern Division, rejected Cart-Mart, Inc.’s attempt to dismiss the suit on the grounds that obesity is not an actual disability.That ruling has prompted reaction from attorneys and human resources professionals warning employers not to take arbitrary action against obese employees, at least in the case of severe obesity. Jeff Weintraub, an attorney with Fisher & Phillips LLP, advises employers in an article in The Wall Street Journal to assume that severe obesity constitutes a disability and make an effort to seek a reasonable accommodation if the disability interferes with job performance. Kaitlyn N. Jakubowski of Barnes & Thornburg LLP notes  that this decision “highlights the lowered barriers plaintiffs face post-ADAAA to sufficiently plead a disability.”
  3. In May, TNT NBA analyst Charles Barkley weathered a torrent of criticism when he made some snarky comments about women in San Antonio, Texas, being fat. The riptide of reaction to that incident had some commentators suggesting that “fat will be the next black.”
  4. Meanwhile, in Europe, the Advocate General (AG) of the European Court of Justice (ECJ) has issued a preliminary opinion in a Danish case (Kaltoft v Municipality of Billund) that morbid obesity is a protected class. The case will now go to the European Court of Justice for a final decision. Attorneys in England are reacting to the decision by warning employers to avoid discrimination, harassment and victimization of morbidly obese employees.

Conclusion: This issue isn’t going away. Employers should be cautious about considering weight in employment decisions and be willing to offer accommodations for overweight employees.

If you would like advice about obesity in the workplace or additional information regarding the Americans With Disabilities Act, contact Johnson Employment Law for guidance. 949-238-8044