Obesity Is a Disability, Says EEOC

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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)].


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Disabled employee sues disability rights organization. In Wega v. Center for Disability Rights, Inc. (2nd Cir., 2010), an employee who had had a stroke was discharged. He sued, claiming disability discrimination and failure to accommodate. The court found for the employer. The evidence showed the stroke created mental and physical impairments that substantially limited his job performance. The employer had granted accommodations of extra time to complete assignments and reduced responsibilities. The employee was not meeting the requirements of the job and could show no other accommodations that were likely to enable him to adequately perform the job.

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

 

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47 Comments

  • Anonymous

    I was labeled an obese person soon after my illness. I am limited in my physical activity so all that I can do is maintain my current weight through moderate exercise and diet. One particular medication I take causes weight gain, but I need to take it. So, I don’t chose to be obese but life has made it so. Believe me, I never thought I would one day be labeled “fat” and have been called a “cow” because I am “limited”. I thank God everyday for my life. And, oh, by the way, my vitals are excellent!

  • Anonymous

    Obesity is limiting-morbid obesity is even more so.Is it disabling-yes it can be not just physically. I have been obese all of my life. Why am I that way? It is very complex issue not only for myself but many. Some of us have emotional , as well as medical and genetic issues. You just can’t look at someone and say hey they shouldn’t eat so much and they wouldn’t be obese. Or why don’t they just exercise. I believe what is needed is not legal intervention but more compassion and understanding towards those who may be struggling with this complex condition.

  • I don’t agree with this lawsuit at all. In my opinion, unless you have some type of hormonal or other medical issue that is causing you to gain weight, then your obesity should not be considered a disability. Obesity from lack of exercise and horrible eating habits is more like an addiction or some other type of habitual behavior that needs to be broken. Not enabled by giving them disability benefits. Maybe this country needs to change the way we see food and exercise by fighting the Big Food Industry that pushes unhealthy foods, putting more physical education back into schools, providing incentives for companies that support healthy living (thru gym time and ample vacation time) for their employees, and maybe even incentives for citizens who make healthy life choices.

  • Anonymous

    Obesity as a disability has been one of the most misunderstood of protected classes. It has always been protected under the ADA. Prior to the ADA Amendments Act (ADAAA) obesity was covered by the ADA if the person was 100% of the expected weight (i.e., if the person should weigh 150 lbs and weighed 300 lbs., instead), there was a medical reason for the condition (such as a thyroid problem, diabetes, medications for other illnesses) and it substantially limited one or more life activities (i.e., breathing, seeing, walking, etc.) The only thing that has changed is the ADAAA has cleared up the types of causes that can be considered. Now, metabolic processes can be considered. Prior to the ADAAA diabetics had a similar problem showing they had a disability. Some courts allowed it and some did not. I don’t think anyone would consider that someone with diabetes should not be allowed to do those things they need (testing, eating) to maintain their health. Now, diabetes is specifically listed as a disability.
    Additionally, alcoholism has always been considered a disability, even prior to the ADAAA, as has drug addiction, although the current use of illegal drugs is not protected under the ADA.

  • Anonymous

    It depends on the job. Obesity does impose major health problems. This person should have counseled on healthy living and then if the the person was still unable to fulfill the requirements of the job, then referred to outplacement assistance and job training for another job that fits the job experience and skills.

  • WOW ! This case comment seem s to have struck a nerve. This case on obesity has generated far more commentary than any other of the many cases and legal developments reported in my monthly Updates ON Employment Law . This is exactly the sort of commentary and various perspectives which would be useful to the EEOC as it considers its approach to what is and is not actionable under the ADAAA. Perhaps those who have commented should also forward their views to the EEOC. Bob

  • I think the basic thing that some of you are missing is that this is not just “protection under the law”–as if that is something ‘special’. It is adding to the list, which we should not have to, those who deserve the same Civil Rights and Civil Liberties as any other human being.

    If everyone was treated equaly and with respect, we would have no need for these Acts or their Amendments–and we would have an ideal society where the rights of others are a given thing and discrimination does not exist.

    Unfortunately, that is not the case. It is sad that we have to have the legal recouse to “protect” those who are not getting the same Civil Rights as others.

    As far as “doing the job”–whomever cannot do the job–for whatever reasons–ideally, cannot be hired–but it should not be based on weight. Just the ability to do the job.

    We are still stuck in the mindset of “special right” for certain people. There is no such thing. We are only trying to level the playing field where discrimination currently exists.

    I am a member of the LGBT population, many which are plagued by obesity because of the health treatment disparities in this country. If equal treatment under the law existed, and was accepted and respected to start with–there would be no need for these extra “protections”. Sad, but true.

  • I have to disagree with the EEOC on this one. A disability is a condition over which an individual has no control over. I am concerned that this could open the door to other, more behavioral issues with no medical basis, to be considered a disability.

  • Anonymous

    The ignorance shown in these comments exclaim the Number One problem of obesity — IGNORANCE. I can’t believe that this large a number of people do not realize that DNA and political history have a LOT to do with obesity in this country. The probability, causability, and medical complications have a lot to do with family genetics. It is a well-documented fact that the financial level or worth of an individual is a direct correlate of the likelihood of obesity or the lack thereof being a staple in their lives. The financial level (which is a direct after-effect of the discriminatory history of this country) greatly determines those affected with obesity. It breaks down like this, the higher the salary the greater likelihood of less stressful lifestyle, the ability to afford better, healthier food choices, jobs that allow for exercise during the day and last but most important — better health care. A person’s propensity for obesity is not only a decided by the causative actions of the person but the genetic history of the family, the family’s race, and the history of that race in this country and their economic level.

    The discrimination associated with obesity is bad enough causing daily added anxiety but the complications caused by the illnesses associated with obesity (High Blood Pressure, Diabetes, Heart complications to name a few) make matters much worse. The side effects of quite a few of the medications that treat the associated diseases are sometimes debilitating and dangerous by themselves but in addition, most list Depression as a key side effects. Which any corporate efficiency analyst will tell you is a leading cause of job absenteeism, lowered production and loss of efficiency in any major industry. To be obese, in pain, suffering from the effects of various health issues and possibly the medications to sustain life AND to be expected to “suffer quietly” (since you caused your own problem they believe) is a reason to be depressed. If that isn’t the qualification for a disability, I couldn’t imagine what would be.

  • Anonymous

    My concern is that this will bring more public relations problems for the ADA. I think some commentators will use to ridicule the ADA, stating that it is government run amok. I can see both sides on this but in the end, I don’t think obesity should be covered under the ADA.

  • Obesity is a condition, not a disability. This is ridiculous! The majority of people are obese because they are gluttons and lazy. Now yes there are some who are not. I think if you feel you’ve got a genetic defect or something then you need to be tested for it to prove you’ve got something wrong. If you come out negative then you should be discriminated against. Its your decision now you live with it! IDIOTS! How dare these fat slobs try to sue because they are lazy and fat and cant do things and move around as easily and get sick because of it. Its you own fault for being fat, not ANYONE elses. Get over yourself and go take a walk or something. I feel no pity for these people. Really lets think about. When your out go over to Jack in the box or Hardees or any other fast food restaurant and look at who most of their customers are. As your driving look at people in the car and notice who’s eating and what they are eating. I see fat people every day eating something while driving. Go to a place of business and look at all the people who walk in with fast food bags. This is INSANE! The majority of fat people are fat because of their OWN decisions.

    • Jennifer Grant

      I have a medical condition call hypothyriodism that effects ur metabolism and how ur body uses energy. I have struggled all my life been on every diet in the book nothing has has helped I take medicine everyday to help but its not enough. I’m sick of people like u calling all obese people lazy and loves to eat. I can tell u that I hardly eat. I don’t eat junk food or chocolate. I hardly eat out. So before u judge someone get the facts.

      • Yes!! I went off on the website comments also. I take 15 meds daily and most of them cause weight gain. I get disability and on my papers it lists one of my disabilities as obesity. This is recent. I only eat once a day. I am not that overweight . I am glad to see someone else sticking up. Thanks. Most people have no clue they just want to talk.

  • Anonymous

    I cannot help but feel that a disability should not be reversible through actions the individual can take on their own. As an obese woman, I am offended that anyone would consider me being fat a disability. I completely understand that for some people obesity is a side-effect of some underlying issue, but obesity where there is no underlying issue is a personal choice not a disability.

  • Anonymous

    Emphysema caused by smoking? A disability without dissent. From eNotes.com ADA article: “The U.S. Court of Appeals for the First Circuit ruled in the 1994 case of Cook v. State of Rhode Island that obesity does constitute a disability under ADA, even when such obesity results from purely nonphysiological causes. In the court’s opinion, since individuals with conditions such as emphysema and cardiopulmonary disease are guaranteed equal treatment by insurance providers by the ADA, and since these conditions often arise as the result of a voluntary habit, namely smoking, the voluntary component of obesity does not remove individuals suffering from the condition from the protection of the ADA.”

  • I would like to thank the people who compare obesity to someone getting injured as a result of their own risky behavior or getting cancer as a result of smoking. It is always interesting to see if one’s judgments can withstand scrutiny, and those of you who are judging people who are obese – you can’t justify hate and discrimination.

  • Anonymous

    I am obesed, and have been most of my life. As an obesed person, I used to be healthy. I exercised about five days a week. I got in a car accident and hurt my back; it hurts now to walk long distances. I used to love to walk and exercise. I recently experience death in my family, which made me change my eating habits, as I was suddenly on a diet of hospital food. I have never been this unhealthy in my life and don’t like it. As I stated before, even though I have been obesed I was always healthy. I think I need to point out also that I am not a big eater; in fact, smaller people eat way more than I eat. Obesity runs in my family; I am not lazy or have problem of pushing myself away from the dinner table. However, people seemed to feel that all obesed people bring this condition on themselves, so there is very little compassion. As previous people have written, people don’t blame others for their conditions that they receive from their own unsafe actions. Obesity is the one disease that people seem to think that is an open book on ugly hurtful comments. I hate being overweight, and hope that if obesity is declared a disability, that I will get some help. Maybe we can get weight loss programs subsidize by the government. Currently, weight loss programs are very expensive; even eating healthy is expensive. Some of us really have hard time burning fat; some of us really do have underdeveloped or under working thyroids. It is true that there is added fat, sugar, and etc. in our diets. For people with normal metabolism, this is not a problem; however, people like me suffer. I think people should walk a mile in someone else’s shoes before they criticize.

  • Anonymous

    The American Psychiatric Association is finally recognizing “binge eating” as a disorder. This disorder contributes significantly to obesity. As someone who has struggled with this disorder since I was about 8 years old, I so wish it was a matter of choice, just like I am sure many alcoholics and substance abusers wish they had a choice. There is one difference between alcohol and/or drugs…you don’t need it to survive!

  • While I can understand where individuals are outraged by labeling obesity as a disability it is also shocking how people can assume and judge that all obese individuals are the same. That is like saying all people with brown hair are the same, or all women are the same, or all alcoholics are the same even. This is not the case.

    Do you honestly think that anyone wants to look in the mirror every single day and see themselves obese? I mean really think about that. Yes there may have been bad choices made in that person’s life but NO ONE wants to be fat. No one wants to carry around all that weight and have people look at them. You can’t walk into a store and buy normal clothes, you can’t fit in normal spaces, you can’t sit in normal seats, and you can hardly move around. Do you really think people enjoy being obese? This is an outrage that you people get on here and judge others that you do not even know.

    Obesity can be caused by many things and although over eating and lack of physical activity may be contributing to it, it may not be the direct cause. Genetics are a huge factor in weight gain and retention. Not everyone has a fast metabolism. Obesity also has many other factors that generally go along with it like depression, mood disorders, a general state of unhappiness, isolation, and many other factors. It is an illness that has severe repercussions that many are not understanding.

    I was never a size 0 or 2, but I was healthy and at a normal weight for my age and height the majority of my life. Around 21 I noticed that I had started gaining some weight. My lifestyle did not change, and I was not binging on bad foods, or alcohol or anything like that. My metabolism simply slowed down. Going to school full time and working two jobs does not exactly leave much time to exercise, let alone eat. As i said my eating habits did not change, nor did my activity level because I was not a previous exerciser although I had a normal body weight. The little bit of weight started interfering with my life and I started isolating myself from others. I became very unhappy and moody. This process just kept on and I tried dieting I tried exercising and it seemed that no matter what I did nothing was even putting a dent on my weight loss. ( It is VERY difficult for some individuals to lose weight ). I saw doctors and they just did not understand, and they tested me for thyroid problems, but nothing there either. The weight gain was not understandable to my doctor and I explained nothing in my life had changed. I am 5’1 so weight sticks out like a sore thumb on short people, it makes us look huge. 2 years later I was the largest I had ever been, 215 lbs. That is ENORMOUS for someone who is 5’1. My diet was not wonderful, but it was not a direct result of me sitting on my butt eating all day long. As I said I was attending college full-time and working two jobs, among other responsibilities. I had tried many times to lose weight on my own but it just did not happen. I saw a weight-loss doctor (who is expensive I might add) and she started me on a VERY strict diet plan and a diet pill. I followed it religiously although it was hard. I mean literally I eat nothing but green vegetables and lean proteins, and fruit, that is IT. I have lost 50 lbs so far but I am not back to the weight I want yet. This was a severe struggle for me, and it was not so much a physical struggle as a mental one. Obesity plays on the mind like you cannot imagine. You don’t even look in the mirror after awhile because it is too painful. I was so depressed, moody, and irritable that I was hard to be around. I knew that I was all of these things but I just could not seem to change it. It basically overtook my whole life. It was the hardest thing I have ever done. Losing weight is not easy. If you are small and never had a problem with weight or losing those 5 lbs, you simply do not understand. We all don’t have the Biggest Loser trainers or knowledge or TIME to do these things on our own. Simply stated: Skinny people will never understand the mental pain and struggle that individuals struggling with their weight face.

    My father’s side of the family is all overweight/obese, many are diabetic, and all of them have faced severe heart problems and strokes. My mother was adopted so we do not know her family history at all. I took this matter into my own hands, I forked out all the money every month to see this doctor and I did this journey on my own. It can happen but many individuals can’t do this without support. And the whole world calling you fat/obese and not accepting you is not exactly the most supportive environment. We should be accepting of these people and trying to help them, not judging them and ridiculing them for being fat. We do not know what makes everyone fat or why it happened. You cannot judge every single obese person and say that they are lazy because obviously I was not I barely had time to sleep or any time for myself.

    Obesity is a bigger problem than this world realizes. The mental journey that one must undergo to face and overcome obesity is extreme. I am not at all saying it is an addiction, because although food may be addicting to some, that was not my experience. It was not the food, it was the simple lack of motivation to even wake up. I did not want to wake up, I didn’t want to see the fat girl in the mirror, or go to class and sit in the desk that I couldn’t fit in anymore, or make friends, or be around old friends because I’m fat and I don’t want them to see me. Obesity is a crippling illness both mentally and physically and we as a nation should be more understanding and develop programs to help combat this illness, not slice people down because of it. Because hey all those models you see in magazines, they don’t really look like that in real life, every single girl in every magazine is airbrushed to look even smaller, or airbrushed to have abs, or airbrushed to be tan. They are not real. Even THEY don’t look that good.

    We should be fighting for equal rights for obese individuals to receive care for this condition. That is not advocating that fat people sit at home and stay disabled and get paid for it. I am advocating programs to eliminate obesity and help fight it. REALISTIC programs that fit into the busy schedules and lifestyles that Americans have and can afford. So many gym memberships are outrageously expensive, and seriously what obese person wants to go to the gym and get on a treadmill with tons of really skinny people SURROUNDING them and staring at them like they are an abomination? NO ONE. That is why they don’t go to gyms because it is humiliating and people make you feel so bad, like all these people on this post. You people contribute to the fat problem. You make fat people feel bad when they try to better themselves, and hey getting skinny doesn’t happen overnight. I am still on my journey to being the healthiest me, but losing 50 lbs has drastically changed my life. I am not depressed, I am not afraid of seeing people I knew, I am more confident and less moody. I mean really you don’t want to get on a treadmill when you feel like your going to break it, or that everyone is watching you workout. You don’t want to lift weights when your body is jiggling for the world to see and you can’t do it. It is humiliating and just sends you farther down the hole into a depressive state and mood. It is a vicious cycle. We should HELP people who are struggling, not hurt hem, judge them, or ridicule them. You people are making things worse by doing so.

    Also, I am educated and I have a bachelor’s degree in Psychology and currently enrolled getting my Master’s in Psych so I understand the mental game and depression. I am coming from a psychological standpoint and this is a journey most could not undertake alone. It can be done but many need support or an understanding of how hard it is. It has been hard for me to do alone but I realized I had to do it because how can I help others if I can’t even help myself? So i did and here I am.

    Stop judging obese people. You do not know their story or their struggle. Lift them up and give them encouragement to change their lives and battle obesity, because it is a battle. It is a long process to overcome obesity, and to lose that much weight. It is not feasible for many to lose 10 lbs a week like they do on TV. It just isn’t possible unless losing weight is all you do and have no job or school. The stigma that all fat people are lazy needs to go away because no one wants to be fat, and no one wants to be laughed and mocked. No one chooses to look that way or feel that way. Obesity is a slow creeping disease that can eat you alive and the more people criticize, the more fat people will become. Acceptance and encouragement are key to helping people battle this illness, and without it America will just continue to be fat and the percentage rate of obesity will increase yet again.

  • Kunle Akinpelu

    For the record I don’t hate or discriminate against anyone who is overweight seeing as I was myself back in the day, what I do not like is someone trying to benefit from their own bad habits and painting it as a disability. It’s a lack of responsibility not a disability.

    So because I try not to just argue but also present solutions, here’s an idea: they should make it conditional, as in, if the obesity is caused by a physical/medical disorder (slow metabolism doesn’t count) then you get the benefits, otherwise you’re really just fat, you should get over yourself and take responsibility for your actions.

    • Heather Owen

      Kunle Akinpelu

      If they ever make ignorance and stupidity a disability you really should apply. You would have no problem getting approved for it.

  • I have recently been approved for disability benefits. On my decision letter it stated one of my disabilities as obesity. I also have bipolar, depression, degenerative disc disease in my lower back, carpal tunnel in both wrists , social anxiety and panic attacks. I was absolutely floored when I read I was obese. Yes I am a little overweight but didn’t think it was a big deal. Most of my weight gain has been caused by the 15 different medications I take everyday. So folks….dont go blame the person for their own actions and call us lazy and its all our fault. You do not know anything until you have stepped in my shoes. Some of the comments disgust me on here. Most if you are just talking out the side if your necks just to have something to say. And its not easy losing weight either. I have tried and failed many times. Some people are so disabled they can’t get out and get exercise. Think about what you all are saying. Peace out folks.

  • Heather Owen

    Ignorance of anything is never an excuse. People who have never been obese, never dealt with someone close to them who is obese … truly have no clue. I keep reading over and over about people being obese by choice and how it’s a lifestyle that makes them that way. Ok Einstein… then explain this to me. There are numerous medications on the market that people have to take for various reasons. One prime example is … Zyprexa. That is an anti-psychotic medication used to treat Schizophrenia. A person who suffers from Schizophrenia can live a normal life with the help of medication such as Zyprexa. However one of the side effects of Zyprexa is WEIGHT GAIN. imagine how much weight a person could actually gain over the course of years of taking this much needed medication. Another good one is a corticosteriod known as Prednisone used for diseases like Rheumatoid Arthritis which happens to be a crippling form of Arthritis. Imagine the weight gain of a person who is severely physically impaired to begin with so exercise is almost impossible then they are given a medication to treat the disease with the side effect of weight gain. Hmmm… but they chose that lifestyle huh? Same with Epileptics who take anti seizure medications like Depakote. How about people who suffer from seasonal allgeries. Studies in 2010 show that people who take Allegra or Zyrtec were 55% more likely to be overweight than those not taking the drug. Is it because they’re more prone to sit and eat constantly or are they just lazy? Neither … the blocking histamine can disrupt the enzyme in the brain that helps regulate food consumption. insulin for diabetics … Dr. Cheskin calls the weight-promoting effect of insulin paradoxical. “The things that we use to treat some conditions that are the result of obesity, like [type 2] diabetes, are prone to make you more obese,” he says. Then there’s Atenolol… used for treating high blood pressure… side effects of it can slow calorie burning and cause fatigue. Ahh how about birth control … like the injection known as depot medroxyprogesterone has a side effect of weight gain. Are you getting the point yet ? That’s only a few medications that have side effects that cause weight gain. Can you honestly tell me that out of the millions of people who consume these medications that they are all fat, lazy, slobs who do nothing but sit around and eat constantly ? Before people start passing judgement, laying blame and making uneducated accusations and creating stereotypes … they need to get the facts right. Furthermore for those of you who think exercise is so easy for those suffering from obesity … I’d like to see you throw 5 – 50 lb bags of dog food on your back and try running a mile. Or hell try walking it. Give me 100 1 arm push ups and 200 sit ups. What that seems unreasonable … well isn’t that what you expect from obese people?

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