Obesity Discrimination in the Workplace

Davina Martin
IRP
April 1, 2013
“Obesity According to the Americans with Disabilities Act and the Americans with Disabilities
Act Amendments Act: Is it a Protected Disability or Can Employees Get Fired for Being
Overweight?”
INTRODUCTION
There are highly consistent negative attitudes toward overweight persons in today’s society.
Studies have revealed distressing weight-based stereotypes that “overweight and obese
individuals are lazy, weak-willed, unsuccessful, unintelligent, lack self-discipline, have poor
willpower, and are noncompliant with weight-loss treatment”.1 These stereotypes give way to
“stigma, prejudice, and discrimination against obese persons in multiple domains of living,
including the workplace, health care facilities, educational institutions, the mass media, and even
in close interpersonal relationships.2”
“Do you think she is qualified to do the job without having a lot of absences and difficulties
doing her work” my CEO asked immediately after an applicant I interviewed had left my office.
“I thought she was a great fit for the job, I replied, why would you think she would not be?”
This applicant like many other obese workers in the United States was being stereotyped because
of her weight. She was to the public eye a person that had no concern for her physical
1 (Rebecca Puhl, Chelsea Heuer, 2010) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866597/#bib1

characteristics and therefore, obviously could not be productive in a business environment. Why
would a company executive want to hire a person that, in their mind, could not even take care of
their own temple, let alone someone else’s? But the better question is, would I be breaking any
laws if we chose to not offer this qualified candidate a position due to her weight? Nothing
explicitly written in the Americans with Disabilities Act3 would prevent my CEO from rejecting
this very qualified applicant based solely upon her weight. Could this potential employee could
take the matter to court claiming the company violated the Americans with Disabilities Act as
amended in the Americans with Disabilities Act Amendments Act4? Depending upon current
interpretation of the law, obesity is in fact, a covered disability under the American's with
Disability Act5 and the Americans with Disabilities Act Amendments Act6; however, because of
the ambiguity of the law, it is not being enforced.
BACKGROUND
Weight stigma has been socially acceptable for many years within jobs. Attitudes that are
negative towards overweight employees have been commonly reported by coworkers,
employers, students, peers, families, medical personnel, and even small children.7 “Recent
3 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)
4 ADA Amendments Act of 2008. In enactingthe Americans with Disabilities Actof 1990 (ADA), Congress intended
that the Act “provide a clear and comprehensive national mandatefor the elimination of discrimination against
individualswith disabilities”and providebroad coverage.
6 ADA Amendments Act of 2008.

estimates suggest that the prevalence of weight discrimination has increased by 66% over the
past decade, and is now comparable to prevalence rates of racial discrimination in America.”8
On Average, overweight employees are paid $1.25 less an hour.9 Over a 40-year career, obese
workers will earn up to $100,000 less before taxes than their smaller, more size acceptable
peers.10 Slightly heavy women make about six percent (6%) less in wages than standard weight
women. (Baum, 2004).11
Very heavy women make 24% less. Men experience significant wage
penalties only at the highest weight levels. (Roehling, 1999)12 Heavier workers are not given
raises as often as thinner workers. In a study of over 2000 women and men, wage growth rates
were 6% lower in a three-year period for heavier workers. (Loh, 1993)13
It has been found that younger women (ages 18 to 25) employees “are especially penalized if
they are larger than average, earning 12% less than their thinner counterparts (Register, 1990)
and being more likely to be found in low-paying jobs (Pagan, 1997).”14 Other factors were ruled
out, and the reason for the difference was found to be social bias and discrimination. (Gortmaker,
1996; Stunkard, 1993).15
People that were 50% or more above their ideal weight on the height-weight charts, that were
surveyed, reported that 26% of them were denied benefits such as health insurance because of
10 http://www.cswd.org/docs/stats.html

their weight, and 17% reported being fired or being pressured to resign because of their weight
(Rothblum, 1990).16
With these astounding facts and percentages of people that are affected by obesity while trying to
work in a competitive job market, this paper will address an overall outlook on why protection
from obesity discrimination is important, and why the clarity of such protection is much needed.
First we will examine the statistical factors of obesity in America, how it relates to the
employment market, and the perception of being an overweight employee amongst supervisors
and peers. We will then examine court cases that interpret the ADA17 and ADAAA18 and how
the law was interpreted and applied to obese individuals. Lastly, we will suggest ways to prevent
further disparate treatment of overweight employees.
Statistics
“Your waistline shouldn’t impact your job search, but unfortunately it may be a deciding factor
when it comes to gaining employment.”19 A study was conducted by the International Journal of
Obesity that showed employees themselves have stereotypical views towards one another if they
are overweight. The case study revealed employees rated other potential colleagues lower when
they were shown pictures of the candidates before weight loss surgery and gave them higher
marks in when shown post-surgery thinner photographs. These candidates’ resumes were equal
in education, skills, and experience. They were not revealed to the scorers that there were; in-
16 (McAfee) http://www.cswd.org/docs/stats.html
17 Americans with Disabilities Act(ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)
18 ADA Amendments Act of 2008
19 The Editors,Study: Obese Job Seekers Have Less Chance of FindingWork, August 15,2012,
http://www.coreperformance.com/daily/live-better/study-obese-job-seekers-have-less-chance-of-finding-
work.html

fact; the same persons.20 The categories being rated in the surveys were starting salary,
leadership potential, and likelihood of being hired. According to the outcomes of the survey,
overweight people had less chance of being hired. Even if the heavier candidates managed to get
hired and seen more for their skills over their weight, the ratings showed they still would have
faced lower salaries and limited career progression.21
How many Americans are dealing with obesity and how does this affect the workforce?
According to the Center of Disease Control, More than one-third of U.S. adults (35.7%) are
obese.22 Those statistics indicate that one-third of the United States populations are at risk for
unfair treatment in the workplace based upon their weight. With current laws being so vague as
to not specifically identify when obesity discrimination has occurred, it is fair to say that many
people will be unfairly rejected from a job with no consequence from the law due to obscurity of
obesity as a protected category included in the language within the Americans with Disabilities
Act23 and the Americans with Disabilities Act Amendment Act.24
“We live in a society that is obsessed with appearance, and studies show that many people equate
appearance to success.”25 There are employers whom are trying to control appearance in the
20 The Editors, Study: Obese Job Seekers Have Less Chance of Finding Work, August 15, 2012,
work.html
21 The Editors, Study: Obese Job Seekers Have Less Chance of Finding Work, August 15, 2012,
work.html
22 http://www.cdc.gov/obesity/data/adult.html,
In 2009–2010, 35.7% of U.S. adults were obese and almost 41 millionwomen and more than 37 million men
aged 20 and over were obese.
25 JulieUngerman and Jennifer Jones, Will theImposition of weight restrictions in theworkplacepresent a hefty
problem for employers under the ADA?, Thomas Reuters News and Insight,9/12/2012,
http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-
_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_empl
oyers_under_the_ADA_/

workplace by imposing weight restrictions on job applicants or employees as a condition of
employment.”26 Most employees are not aware of what the current law is as it pertains to
companies having weight restriction policies. People want to know if this is this legally
acceptable.
Background: THE ADA
“Whether these policies are permissible can only be answered with a “maybe.” There is no
federal law that prohibits obesity discrimination, so plaintiffs have brought weight discrimination
claims under the Americans with Disabilities Act27 (“ADA”) with varying degrees of success.
Title I of the Americans with Disabilities Act of 199028 prohibits private employers, state and
local governments, employment agencies and labor unions from discriminating against qualified
individuals with disabilities in job application procedures, hiring, firing, advancement,
compensation, job training, and other terms, conditions, and privileges of employment.29
An individual with a disability is defined as a person who:
 Has a physical or mental impairment that substantially limits one or more major life
activities;
 Has a record of such an impairment; or
29 Equal Employment Opportunity Commission (EEOC.gov)

 Is regarded as having such impairment.
When establishing the required elements of a prima facie case of disability
discrimination under the ADA three elements must be proven:
 (1) the individual’s impairment qualifies as a disability within the meaning of the ADA;
 (2) the individual is qualified to perform the job-essential functions with or without
reasonable accommodations; and
 (3) the individual has suffered an adverse employment action owing to the employer’s act
or omission against the individual.30
THE ADAA
Because of the confusionanduncertaintycausedbythe ADA and the courts’ variedinterpretationsof its
scope,the ADA AmendmentsAct(ADAAA) waspassedin2008. The ADAAA expandedthe definitionof
disabilitytoincludeimpairmentsof manual tasks,walking,seeing,hearing,speaking,breathing,learning
and bendingaswell asimpairmentsof the immune system, digestive,bowel,brain,respiratory,
circulatory,endocrine andreproductive functions.31
The passing of the ADA Amendments Act of 2008 (the "ADAAA")32, signaled congress's intent
that the definition of disability should be construed broadly. Prior to the ADAAA, the EEOC's
Interpretive Guidance included the statement that, "except in rare circumstances, obesity is not
31 Victoria Stern, The Murky Landscapeof Weight Discrimination Law,General Surgery News, ISSUE: SEPTEMBER
2012 | VOLUME: 39:9

considered a disabling impairment.”33 The EEOC has since removed that language.34 The
Americans with Disabilities Act Amendments Act (ADAAA) significantly expanded the
definition of "substantially limits" and "major life activities," increasing the likelihood that
morbid obesity or even obesity constitutes a disability under the ADAAA.
DETERMINING THE TERMS “SUBSTANTIALLY LIMITS” AND “MAJOR LIFE
ACTIVITY”
 The term “substantially limits” shall be construed broadly in favor of expansive coverage,
to the maximum extent permitted by the terms of the ADA35. “Substantially limits” is not
meant to be a demanding standard.36
 Impairment is a disability within the meaning of this section if it substantially limits the
ability of an individual to perform a major life activity as compared to most people in the
general population. An impairment need not prevent, or significantly or severely restrict,
the individual from performing a major life activity in order to be considered
substantially limiting. Nonetheless, not every impairment will constitute a disability
within the meaning of this section.37
 The primary object of attention in cases brought under the ADA should be whether
covered entities have complied with their obligations and whether discrimination has
33 Suzanne E. Peters, Esq., Wait,Watch Her: Obesity as a Disability under the ADA, Employment Law Monthly
December 2012
34 citing 29 C.F.R> pt. 1630 app. Section 1630.2(i); see also Section 902 Definition of the Term
Disability, http://www.eeoc.gov/policydocs/902cm.html
37 citing 29 C.F.R> pt. 1630 app. Section 1630.2(h); see also Section 902 Definition of the Term

occurred, not whether an individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment “substantially limits” a major
life activity should not demand extensive analysis.38
 The determination of whether an impairment substantially limits a major life activity
requires an individualized assessment.39
“The ADAAA instructs that ‘substantially limits’ is to be construed broadly and is not a
demanding standard. Now, the impairment need not prevent or significantly restrict a major life
activity to be considered substantially limiting, and the relevant comparison is to most people
and not those similarly situated.”40
“Additionally, the ADAAA expands the scope of “major life activities” to include the operation
of major bodily functions, and to include activities such as sitting, reaching, bending, and
lifting. The addition of these activities may be relevant to a claim that obesity is a covered
impairment.”41
Regarded As-PERCEIVED DISABILITY
The Americans with Disabilities Act includes protection from individuals that have been
discriminated when an entity (e.g. an employer) takes an action prohibited by the ADA based on
an actual or perceived impairment.42 Under the "regarded as" prong of the ADAAA43, an
employee must only show that the employer took an action because of its “belief” regarding the
39 http://www.law.cornell.edu/cfr/text/29/1630.2
40 http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-

employee's impairment. The employee does not have to “show” impairment that substantially
limits a major life activity44. The ADA regulations provide that an individual is "regarded as disabled"
if she: (1) has a physical or mental impairment that does not substantially limit major life activities but is
treated by an employer as constituting such limitation; (2) has a physical or mental impairment that
substantially limits major life activities only as a result of the attitudes of others toward such impairment;
or (3) has none of the impairments specified in the ADA subsection45
, but is treated by an employer as
having a substantially limiting impairment. Therefore, an individual will be "regarded as disabled" when
others behave toward that individual as if she had a substantially limiting impairment, regardless of
whether the individual actually has such an impairment.46
The "regarded as disabled" provision, which is derived from similar language in the ADA's precursor
statute, the Rehabilitation Act of 1973,47
was intended by Congress to provide relief to individuals who
are discriminated against because of the "myths, fears,and stereotypes associated with disabilities."48
“In
short, the ‘regarded as disabled’ provision was designed as a safety net for the individual who, though not
in fact disabled from performing a particular job, was nevertheless discriminated against based upon the
erroneous assumptions of others about such individual's ability to perform that job.”49
“Of course, that does not mean that an employer's belief that an individual is unqualified for a
particular job because of a physical attribute or condition necessarily renders that individual
"handicapped," or that the employer's failure to hire that individual constitutes handicap
discrimination. The attribute or condition, as perceived by the employer, must be in the nature of
a mental or physical impairment substantially limiting the capacity to work.50 “Perceived
disability discrimination occurs when the employer treats the employee unfairly because the
employer believes the employee is disabled when he/she is not, has an unreasonable bias against
the perceived disability or medical condition or, without a proper basis, believes that the perceived
disability or medical condition may change for the worse in the future.”51
44 citing 29 C.F.R> pt. 1630 app. Section 1630.15(f)l
45 29 C.F.R. § 1630.2(h)(1)-(3).
46
See, e.g., Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (stating that
the focus is on theimpairment's effect upon the attitudes of others).
47 29 U.S.C. § 706(8)(B).
48
H.R. REP. No. 101-485(II), at 30-31 (1990), reprinted in 1990 U.S.C.C.A.N. 452,
452-53; see also School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987)
("regarded as disabled" provision intended to combat the effects of "archaic attitudes,"
erroneous perceptions, and myths that disadvantage persons with, or regarded as having,
disabilities).
49 Risa M. Mish,“Regarded As Disabled” Claims Under the ADA: Safety Net or Catch-All?”,
https://www.law.upenn.edu/journals/jbl/articles/volume1/issue1/Mish1U.Pa.J.Lab.&Emp.L.159(1998).pdf
50
American Motors Corp. v. Labor and Indus. Review Comm'n, 350 N.W.2d 120, 125 (Wis.
1984).
51 http://www.schwartzandperry.com/lawyer-attorney-1269323.html

To an average employee, this is an area that can be obscure within the ADAAA52. There seems
to be no definitive ways of proving an action based on an employers perception unless the
employer admittedly volunteers the information. If obesity is not translucently stated as a
protection, it is very difficult to know when the protection is being violated.
For instance,if apersonis250lbs. or 500lbs, whatare the parametersthat outline whatisconsideredas
“morbidlyobese?” “The EEOC’s interpretive guidance53
statesthatbeingoverweight,inandof itself,
generallyisnotanimpairmentbutthat“severe obesity,whichhasbeendefinedasbodyweightmore
than 100% overthe norm,is clearlyanimpairment.”54
Termssuchas “100% overthe “norm” in addition
to othersthat I will mention,are areasthatneedto be explicitlyironedout,inordertoofferclear
interpretationof the lawforeveryone.
Essential Functions and Reasonable Accommodations
If an employee or candidate can perform the essential functions of his or her job duties, no other
factor should matter when retaining employees. The Equal Employment Opportunity
Commission defines ‘essential functions’ as, “the basic job duties that an employee must be
able to perform, with or without reasonable accommodation.”55
They further define reasonable
accommodations as, “any change or adjustment to a job or work environment that permits a
qualified applicant or employee with a disability to participate in the job application process, to
perform the essential functions of a job, or to enjoy benefits and privileges of employment equal
to those enjoyed by employees without disabilities.”56
It is a violation of the ADA to fail to
provide reasonable accommodation to the known physical or mental limitations of a qualified
individual with a disability, unless to do so would impose an undue hardship on the operation of
your business. Undue hardship means that the accommodation would require significant difficulty
or expense.57
54 http://www.hrhero.com/hl/articles/2012/04/26/obesity-big-ada-problem-for-employers/
55 EEOC.gov
56 EEOC.gov
57 EEOC.gov

Analysis
The importance of beingable toclearlydefine obesitydiscriminationunderthe ADA,iscrucial inorder
to protectbusinessesfromsufferinghighfinancial consequences,aswell asqualified personnelfrom
beingdisregardedasemployable andwell qualifiedemployees.
Let’s look at the first element of defining a disability and how ambiguous it can be when
determining whether or not obesity qualifies under the current definition. Under the changes
made by the ADAAA, a disability is having a physical or mental impairment that substantially
limits a major life activity; or a record of a physical or mental impairment that substantially
limited a major life activity; or when an entity (e.g.. an employer) takes an action prohibited by
the ADA based on an actual or perceived impairment.58 What are the remedies of action if an
employer terminates or fails to promote an obese employee that does not have an impairment
that limits a major activity? Have they not committed discrimination? Where are the protections
from an obese person that can perform his or her job duties but are not given the opportunity to
advance based on stereotypes of society?
The law should specifically state obesity as disability. Obesity should be protected because it
has no bearing on whether an applicant can fulfill the essential functions of a job. Also, if we
take a look at the elements discussed previously that defines disability and the medical issues
that obesity causes the human body, the qualification, in most instances, fit. “In addition to the
physical limitations associated with increased body weight, obesity is also associated with health
conditions such as hypertension, diabetes, heart disease and increased risk for certain types of

cancer.”59 It is without question that the morbidities associated with obesity can significantly
interfere with an individual’s ability to perform his or her job.60 “Unfortunately, while the
physical and health limitations brought on by obesity may be significant, the ADA itself does not
identify obesity as a disability.”61 However, in saying this, limitations does not mean the job
cannot be done, simply being overweight may only affect how the job is performed. The nature
of how the task may be completed does not necessarily make an overweight person unsuitable
for a position. In addition, the question of how obesity affects the body should have no bearing
on deciding if a person is qualified for a job.
Under the current statute, court rulings have been split when the issue of obesity discrimination
has been presented. The issues that have arisen are due to the current language of the statute
within the American with Disabilities Act and the implementation of the Americans with
Disabilities Act Amendments Act. The conflicting judgments are due to the fact that the ADA
does not specifically define when obesity is considered to be a disability. Previous to the
ADAAA, obesity was considered a disability only when an underlying physiologic disorder
existed and the obesity was not a result of voluntary actions.
As I delve into cases such as and Cook vs. State of Rhode Island Department of Mental Health62
it will discuss the stigma of how employers negatively perceive obesity as a factor in being
qualified for a job when it should not be. An employer in another case I will review, Greenberg
59 Larry Justice Jr., Is Obesity a Disability Under the ADA?, http://www.thestaffingstream.com/2012/10/23/is-
obesity-a-disabilty-under-the-ada/
obesity-a-disabilty-under-the-ada
obesity-a-disabilty-under-the-ada
62 Cook v. State of Rhode Island, Dep’t of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st
Cir. 1993)

v. BellSouth Telecommunication Inc63 the employer made no attempt to provide for reasonable
accommodations, nor take into account the fact that the workers weight did not prevent him from
performing the essential functions of his job, yet because he was overweight; he was unjustly
terminated but was able to use the law to his advantage. The court rulings will further show why
some employers have prevailed under the law and others have conceded in terminating
employees as a result of unclear guidelines interpreted by courts when determining the factors
that qualifies for protection from obesity discrimination within the Americans with Disabilities
Act64 and the Americans with Disabilities Act Amendments Act.65 As I will discuss further,
there are bona fide circumstances where placing weight restrictions on candidates and employees
are necessary in order to be qualified for a position such as demonstrated in the case of Hill v.
Verizon Maryland,66 however; there are justifications for those requirements. In Equal
Employment Opportunity Commission vs. BAE Systems, Inc.67 I will show how an employee was
terminated simply because he was overweight and the employer did not attempt to provide for
reasonable accommodations which are very necessary and should be considered in order to avoid
discrimination. The court reasoned that “in a society that all too often confuses ‘slim’ with
‘beautiful’ or ‘good,’ morbid obesity can present formidable barriers to employment” and, where
these “barriers transgress federal law, those who erect and seek to preserve them must suffer the
consequences.”68 Two cases brought about by the Equal Employment Opportunity Commission,
E.E.O.C vs. Watkins Motor Lines, Inc.,69and E.E.O.C. v. Texas Bus Lines70, shows how societies
63 Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1264-65 (11th Cir. 2007)
66 Hill v. Verizon Maryland, Inc., 2009 WL 2060088 (D. Md. July 13, 2009)
67 See Civil Action No.:11-cv-3497
Cir. 1993)
69 463 F.3d 436, 440 -445 (6th Cir. ... 2006

perception towards obesity is so deep that it has effects on physicians who we would think would
know better, however; their medical evaluations were clouded by their discriminatory
conceptions.
Case Review “Perceived Disability/Regarded as” claims
One of the first cases to address discrimination based upon obesity was Cook vs.
State of Rhode Island Department of Mental Health.71 “The plaintiff, Bonnie Cook,
alleged that she was discriminated against by the defendant Rhode Island
Department of Mental Health, a federally funded institution, when her application
for employment as an institutional attendant at a facility for retarded persons was
denied because she was perceived as disabled due to her weight. Bonnie was a
former employee for The Department of Mental Health from 1978 to 1980. Cook
voluntarily resigned in 1981 and returned to her position for a five year period,
working continuously until 1986. Thereafter, the plaintiff again voluntarily left the
position for personal reasons. There was no negative history marks in her
employment file during her employment term before leaving. In 1988 Ms. Cook
applied for rehire within the same position she held before her resignation. At the
time of her application, she was 5 ft. 2 inches and over 320 pounds. All applicants
were required to undergo a routine pre-hiring physical examination. During this
examination, the company nurse came to the conclusion that even though Bonnie
was morbidly obese, she was physically fit to do the job. The physician reviewing
70 EEOC v. Texas Bus Lines, 923 F.Supp. 965, 973-74 (S.D.Tex.1996)
Cir. 1993) (morbidly obese plaintiff can be considered disabled, and thus, entitled to protection from
discrimination)

the pre-hire physical examination denied plaintiff the position. The Department of
Mental Health did not deny that the plaintiff's obesity was the only reason they
refused to hire Bonnie. The plaintiff contended that the defendant's failure to offer
her the job for which she applied, based solely upon her obesity, constituted
actionable discrimination under the Federal Rehabilitation Act of 198472 and under
two Rhode Island Statutes pertaining to disability discrimination. The plaintiff
alleged that the defendant's conduct constituted discrimination on the basis of a
"perceived disability," which the plaintiff argued was encompassed by Section 50473
protecting not only the disabled, but those who suffer from discrimination because
of a perceived disability. The jury specifically found that the plaintiff was capable
of performing the duties required of the position she had applied for and that the
defendant had discriminated against her in violation of Federal and State Statutes.74
Bonnie Cook prevailed because her employer refused to hire her solely due to her
obesity. The courts reasoning for their decision was that MHRH perceived her
obesity as a handicap, therefore; Cook would be an ‘individual with handicaps’
within the meaning of The Americans with Disabilities Act.75 In this case, the
employee prevailed, however; depending on a matter of interpretation of the terms
72 29 u.s.c. § 794 (section 504)
73 29 u.s.c. § 794 (section 504)
74
Cook v. State of Rhode Island, Dep’t of Mental Health, Retardation, and Hospitals, 10
F.3d 17 (1st Cir. 1993)
75 See 29 U.S.C. § 794 (a) states No otherwise qualified individual with a
disability in the United States, as defined in section 705(20) of this title,
shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive agency or
by the United States Postal Service.

used by the Americans with Disabilities Act76; a different judge in a different court
room could have possibly ruled in favor of the defendant without obesity clearly
becoming a protected disability.
Case Review: “Reasonable Accommodations” claims
There has been a long history of loyal workers whom have been discharged from their employers
because of their weight. Even if weight is a factor in the way a person completes there job
duties, by mandating an obesity discrimination statue, employers will be forced to make
reasonable accommodations in order for obese individuals to be successful in their position in the
company without fear of being discriminated against. In Greenberg v. BellSouth
Telecommunication, Inc.,77 Allan A. Greenberg, formally employed with BellSouth was
terminated because of his weight. His job duties consisted of climbing ladders and using various
equipment for installing and maintaining telephone service for BellSouth’s’ customers. Because
of the nature of his job, there were mandatory weight limitations in place due to safety concerns.
Allan’s employer instructed him to lose 50 pounds in order for him to keep his job. After he was
unable to lose the weight or be assigned to another position within the company, Greenberg was
terminated. The court ruled in favor of BellSouth Communications. The court ruling was due to
the fact that “Greenberg had not established the required elements of a prima facie case of
disability discrimination under the ADA.”78
(plaintiff’s obesity was not an impairment that substantially limited a major life activity. Therefore,
plaintiff was not disabled under the ADA).

Cases such as this could possibly have a different outcome if Allan Greenberg had been
protected from obesity discrimination under clear guidelines through the ADA. Greenberg
“testified that he informed BellSouth that a stronger ladder could accommodate his weight.
When he requested that BellSouth purchase these ladders, however, he received no response.”79
Because Greenberg was not regarded as having a disability; reasonable accommodations were
not obligatory (regarding his request for a stronger ladder) therefore; the blatant disregard for the
request was not even examined and in turn, his weight resulted in his termination.
There are situations where mandating weight restrictions will be necessary in the workplace, this
however, does not exclude the fact that employers still need to provide for reasonable
accommodations. In the case of Hill v. Verizon Maryland,80 the plaintiff, Andy Hill claimed he
discriminated against because his of his weight. Hill was over the 275 pound weight limit
required for service technicians as similar to the Alan Greenberg case, however; this differs
slightly because of two concrete reasons that justified in Verizon ultimately not being able to
retain him in his position. First, unlike BellSouth, Andy Hill was given reasonable
accommodations when he exceeded weight limitations when Verizon supplied him with a heavy
duty ladder that could support his weight up to 325 pounds. Verizon specifically stated their
reason for establishing a maximum weight standard due to “Service Technicians must meet the
weight restriction to comply with OSHA/Company safety standards. They must follow
established safety practices and guidelines. The policies recognize the inherent danger in having
obese individuals work at heights, on equipment not designed to withstand their weight. Mr. Hill
would have posed a danger not only to himself, but to bystanders and pedestrians as well. His
79 http://www.ca11.uscourts.gov/opinions/ops/200615134.pdf
80 Hill v. Verizon Maryland, Inc., 2009 WL 2060088 (D. Md. July 13, 2009)

inability to comply with those legitimate policies rendered him unable to perform an essential
function of his job even with reasonable accommodations.”81
Of course there will be justified circumstances where weight restrictions are necessary in order to
perform the essential functions of the job, (which was used as BellSouth’s reasoning for the
termination, however; they made no effort to accommodate him beforehand) as demonstrated in
Hill v. Verizon Maryland, Inc.82, but having statues in place, will force employers to comply with
reasonable requests for accommodations that will not cause the business undue hardship prior to
terminating an overweight employee. If obesity was clearly recognized as a disability within the
American Disabilities Act83, this case would have had an opposite outcome as exampled in the
case of EEOC v. BAE Systems, Inc.84
In EEOC v. BAE Systems, Inc.,85 The plaintiff Ronald Kratz was an employee weighing over 600
pounds which job duties consisted of driving a forklift and material handling in BAE’s
manufacturing facility. The majority of his job Kratz was responsible for consisted of desk work
(90 percent), and a very small portion he was responsible for standing, and/or driving a forklift
(10 percent). Ronald Kratz was instructed to wear a seatbelt whenever he used the company
forklift, and due to his weight, he requested a seatbelt extender. The plaintiff did not receive the
extender; instead, he was terminated two weeks later because, according to BAE, “he could no
81 Hill v. Verizon Maryland, Inc., No. RDB-07-3123, 2009 WL 2060088 at *2, 11 (D. Md. July 13, 2009)
82 See. e.g., Hill v. Verizon Maryland, Inc., No. RDB-07-3123, 2009 WL 2060088 at *2, 11 (D. Md. July
13, 2009) (upholding employer’s policy that telephone pole service repair persons may not weigh
more than 325 pounds to perform aerial work)
1. 84
EEOC v. BAE Systems, Inc, U.S. Dist. Ct. S. D.. Tex. No. 4:11-cv-03497 (Sept. 27,
2011).
85 EEOC v. BAE Systems,Inc.,. Civil Action No. 4:11-cv-3497

longer perform his job due to his weight.”86 The EEOC 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. So long as an employee can perform
the essential job duties of a position, with or without reasonable accommodation, the employee
should be allowed to work on the same basis as any non-obese employee.”87 “Employers cannot
fire disabled employees based on perceptions and prejudice” said Kathy Boutchee, the
EEOC’s senior trial attorney in Houston who was commenting on the outcome of the
settlement. The suit was settled for $55,000 to be paid to Ronald Kratz along with outplacement
services in addition to other agreements.88 Although this was a financial victory for Kratz and
the EEOC, it was not a permanent solution. Ronald still did not recover his job back. Had
obesity been clearly included in the definition of “disabled” perhaps requests from employees
weighing over the average height and weight would be taken more seriously.
Pre-ADAAA Cases – Physiologic Cause
Previous to the ADAAA89, the Americans with Disabilities Act90 stated that morbid obesity may
be an ADA impairment “where it has a physiological cause91,” and that non-physiological
morbid obesity is not an “impairment92” under the ADA. An “impairment,” for purposes of the
86 See EEOC v. BAE Systems,Inc.,. Civil Action No. 4:11-cv-3497
87 EEOC v. BAE Systems,Inc.,. Civil Action No. 4:11-cv-3497
88 See http://www.eeoc.gov/eeoc/newsroom/release/7-24-12c.cfm
9129 CFR 1630.2 (g)
92
29 CFR1630.2 (h) Physical or mental impairment means (1) Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive,
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental
retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

ADA93, is any “physiological disorder, or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of various body systems.”94
Pre-ADAAA; in the case of E.E.O.C vs. Watkins Motor Lines, Inc.,95Stephen Grindle was an
overweight bus driver and dock worker for Watkins Motor Lines that was terminated because of
what he believed to be his weight. While working on the job, he was involved in an injury that
caused him to be out of work for a six month period. Prior to Stephen’s attempt to return to his
duties, he received a doctor’s clearance for dull duty but was denied the return due to a list of
demands that Watkins requested for his doctor to complete. Watkins employer in turn insisted
that he would need to be examined by the companies’ physician prior to a full release back to
duty. The doctor that completed the exam notated that Stephen Grindle was over 400 lbs and
regardless of the fact that he met the Department of Transportation standards for truck drivers, in
his opinion, he could not perform his job safely. Grindle was eventually terminated. The
district court found that “non-physiologically caused obesity is not an impairment under
ADA.”96 The United States Court of Appeals agreed.
In contrast, E.E.O.C. v. Texas Bus Lines97, an employer’s perception that a former employee was
disabled by her morbid obesity was enough for the employee to win the discrimination suit,
without arguing a physiologic cause. Arazella Manuel was an applicant for Texas Bus Lines. As
required by DOT Regulations, Manuel had to pass a physical examination in order to drive the
passenger van for the company. Even though Arazella passed the road test, the medical
examiner disqualified her from receiving a clearance certificate because he noticed her having a
slight waddle as she rose from her chair preparing for her exam. The doctor noted the reason for
his rejection was Ms. Manual would not be able to move around fast enough if there were to be
an accident on the van. Texas Bus Lines consequently, disqualified her from employment. The
Court noted that, “although an individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of others may prove just as disabling.
94 29 C.F.R. 1630.2(h)(1).
95 463 F.3d 436, 440 -445 (6th Cir. ... 2006
96 29 C.F.R. 1630.2(h)(1).
97 EEOC v. Texas Bus Lines, 923 F.Supp. 965, 973-74 (S.D.Tex.1996)

"Such an impairment might not diminish a person's physical or mental capacities, but
nevertheless substantially limits that person's ability to work as a result of the negative
reactions of others to the impairment."98
The need for protection from obesity discrimination and the ambiguity surrounding its coverage
will become more crucial as society progresses in North America.
Recommendations
How do we know who is protected under the ADA and/or ADAAA under the current statute?
“Employers should be careful not to make assumptions about obese individuals' ability to do a
job. Managers and supervisors should not convey to obese applicants or employees any belief
that the individual cannot perform the essential functions of the job held or sought or that the
individual presents a safety risk. Moreover, supervisors and managers should not make any
comments suggesting to applicants or employees any belief that the employee's weight is an
impairment. Further, employers should not automatically reject accommodation requests from
morbidly obese or obese employees.”99
Recommendations Employers should be forced to provide accommodations for overweight
employees if we are to treat obesity as a disability. Simple accommodations to protecting the
rights of an obese individual can be something as little as purchasing a seat belt extender or
buying a heavy duty ladder. “A reasonable accommodation is a modification of the conditions
98 Arline, 480 U.S. at 283, 107 S.Ct. at 1128-29
99 Myra Creighton, JD, Is Obesity an Impairment Under the Americans with Disabilities Act?,Beckers Hospital
Review Business and Legal Issues for Health System Leadership, December 20, 2012,
http://www.beckershospitalreview.com/hospital-management-administration/is-obesity-an-impairment-under-
the-americans-with-disabilities-act.html

under which a particular job must be performed so as to permit a handicapped person to
perform it despite that person's handicap.”100
In order to minimize the high financial impact that obesity discrimination can have on businesses
as well as employees, the ADA should be further amended using the guidelines set forth in the
Supreme Court case decision in BNSF Railway Company v. Feit.101 This case examined in detail,
the statute set forth in the Americans with Disabilities Act, the Americans with Disabilities Act
Amendments Act, and the Equal Employment Opportunity Commission regulations and
interpretive guidelines, in order to come to the conclusion that obesity qualifies as a disability.
The facts of the case are as followed:
BNSF offered an applicant by the name of Eric Feit an offer of employment conditional upon a
successful completion of a physical, drug test, background check, I-9 documentation, and the
company’s medical questionnaire. BNSF thereafter informed Feit he wasn’t qualified for the
position as an conductor trainee due to health and safety risks that are associated with obesity.
The company also told Eric Feit that he would no longer be considered for the position until he
did one of two things, lost 10% body weight or passed a physical exam in which he must pay for
himself. Feit did in fact pass his self funded exam with one exception, he did not complete a
sleep test which was part of the testing because of the high cost associated with the procedure.
Eric was then faced with the second option of losing 10% body weight since he could not pay for
the $1800.00 sleep test. Feit filed a discrimination charge against BNSF for perceived disability
100 See Bento, 599 F. Supp at 745.
101 BNSF RY. CO. v. FEIT. 281 P.3d 225 (2012). 2012 MT 147

discrimination because of his obesity. The case went through the Department of Labor, Montana
Human Rights Commission, and U.S. District Court and all three opinions were in favor of Eric
Feit in accordance to the “regarded as”102 factor in accordance with the Americans with
Disabilities Act Amendments Act.103
Following are the criterion the District Court used in determining whether or not obesity should
be covered according to the guidelines set forth in the Americans with Disabilities and the
Americans with Disabilities Act Amendments Act in order to clear up the ambiguity. It is in my
opinion, future decisions on this issue should follow suit when deciding on obesity
discrimination.
“In BNSF Railway Co. v. Feit, 281 P.3d 225 (Mont. 2012), in a four-to-one decision, the
Montana Supreme Court held that obesity is an impairment that can qualify as a protected
disability under the Montana Human Rights Act (MHRA), state laws that parallel the ADA, even
if it is not symptomatic of a physiological disorder - that is, even if the obesity is self-imposed,
rather than weight gain caused by an underlying medical condition.”104
“The Montana Supreme Court in Feit relied on the ADA Amendments Act of 2008 (ADAAA)
and the EEOC's interpretive guidelines, revised since then, to find that obesity is an impairment
and can be a protected disability under the MHRA, even if it is not a symptom of a physiological
disorder. The ADA defines a "disability" as a "physical or mental impairment that substantially
limits one or more of a person's major life activities." The EEOC's guidelines define
"impairment" to include "[a]ny physiological disorder or condition . . . affecting one or more
102 29 C.F.R. § 1630.2(h)(1)-(3).
104 David Farren, Obesity in the Workplace,October 25, 2012,
http://www.law.suffolk.edu/library/research/bluebook/electronic.cfm

body systems . . . "See 29 C.F.R. §1630.2(h)(1) (2011). The ADAAA does not expand either of
those definitions, but it does chastise the federal courts for being too restrictive in deciding who
is and who is not disabled. It also expressly states that, as matter of public policy and
Congressional intent, "the definition of disability . . . shall be construed in favor of broad
coverage . . . to the maximum extent permitted" by law.”105
“Thus, the ADAAA has spurred the EEOC to rewrite its guidelines and policies to pronounce, or
at least to suggest, that one's weight, if excessive, is or can be a physical impairment that
qualifies as a protected disability, even if it is not symptomatic of a physiological disorder. See
29 C.F.R. pt. 1630 app. §1630.2(h) (2011). The EEOC's Compliance Manual, used by courts to
gain helpful insight into the agency's interpretations of the law, states that "being overweight, in
and of itself," is generally not an impairment, but that "severe obesity, which has been defined as
body weight more than 100% over the norm . . . is clearly an impairment." EEOC Compliance
Manual §902.2(c)(5)(ii). Moreover, although the distinction between self-imposed obesity and
obesity that is caused by a physiological disorder has often been drawn as a means to segregate
persons who can be "blamed" for their condition from those who can't, the EEOC has always
taken the position that "[t]he cause of a condition has no effect on whether that condition is an
impairment" under the ADA. See EEOC Compliance Manual §902.2(e). In theory, then, obesity
should be treated no differently from physical impairments caused by smoking.”106

“While it remains unclear whether the ADAAA includes obesity as a disabling impairment, an
employer must use caution when imposing weight restrictions as a condition of
employment. Weight requirements should be:
• Directly related to the essential functions of the job, and
• Required to ensure that the employees safely perform their jobs without endangering
themselves or others.”107

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