EEOC now claims obesity is a disability under ADAAA. The U.S. Equal Employment Opportunity Commission (EEOC) now claims obesity is a disability under the Americans with Disabilities Act Amendments Act (ADAAA). Until now, the courts have routinely rejected general obesity as a “disability” under the ADA and Rehabilitation Act. Cases have required one to show some different underlying medical condition that is a disability and that causes obesity as a “symptom.” Now the EEOC has filed suit, claiming that a company discriminatorily fired an employee because of obesity. The EEOC claims that ever since President George W. Bush authorized the ADA Amendments Act in 2008, the law has a much lower threshold for what constitutes a disability. The EEOC claims that basic obesity, without any other underlying condition, sufficiently impacts the life activities of bending, walking, digestion, cell growth, etc., to qualify as a disability or perceived disability. EEOC v. Resources for Human Development (E.D. LA.2010).
Too much reference information generates ADA suit. All information about employees’ conditions, diagnosis and use of FMLA or other sick leave is confidential. It is not to be shared with anyone except under the tight framework of the ADA, FMLA, HIPAA and other privacy laws. In EEOC v. Thrivent Financial for Lutherans (E.D. Wis., 2010), it is alleged that the company revealed medical information about a former temporary employee’s migraine condition as part of giving references. This prevented the person from obtaining other jobs. The EEOC has sued on behalf of the former employee, seeking back pay for the jobs he would have obtained if not for the illegal information. The suit also seeks punitive damages from the company’s alleged “reckless indifference” to the confidentiality requirements.
This case is yet another reminder about the reference process. An employer has great latitude to provide honest and legal information. However, this should be a controlled function. All managers should have at least rudimentary training in the do’s and don’ts. No reference should be given until it is cleared by a manager who has more in-depth knowledge of the legal parameters of the process. [For more information, request the article Use and Abuse of References by Atty. Robert Gregg, Boardman Law Firm, or see boardmanlawfirm.com (reading room)].
