Are you a restaurateur who employs a server or cook that is overweight?  Have you considered firing an employee because they were obese?  Alternatively, did you decide not to hire an applicant because they were obese?  These types of scenarios can be the basis for discrimination claims under the American with Disabilities Act (ADA).

 You should be aware that in 2012, the Equal Employment Opportunity Commission (EEOC) is focused on finding and litigating systemic discrimination claims (i.e., class actions) of all types including weight.  In the United States, approximately 34 percent of adults and 17 percent of children and adolescents are obese.  Based on these statistics, obesity discrimination would correspond with the EEOC’s class action focus for 2012.

 In the past, courts have disagreed on whether the ADA covers morbid, or severe, obesity by itself, or if the obesity must be the result of some underlying physiological disorder (i.e., hypertension, diabetes, thyroid disorder). Some federal courts have recognized obesity under the ADA without an underlying disorder. See Cook v. State of Rhode Island, Dept. Of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1^st Cir. 1993). On the other hand, some courts have required that obesity relate to a physiological disorder. See Francis v. City of Meriden, 129 F.3d 281 (2^nd Cir. 1997); E.E.O.C. v. Watkins, 463 F.3d 436, 442-43 (6^th Cir. 2006). 

 However, another federal court has recently found severe obesity, regardless of the cause, to be a disability under the ADA. See E.E.O.C. v. Resources for Human Development, Inc., No 10-3322 (E.D.La Dec. 6, 2011). The plaintiff in that case weighed approximately 400 pounds when she was hired. The employer terminated the plaintiff when it determined that her weight severely impaired her job performance. At the time of her termination, she weighed 527 pounds. The court upheld the EEOC’s Compliance Manual defining severe obesity as a body weight more than 100 percent over the norm. This case will go to a jury to determine whether the employer violated the ADA and could result in the employer paying civil penalties, compensatory and punitive damages.

 Bottom Line: You should consult an employment attorney about the EEOC’s enforcement trends, new laws, and increased regulations. In addition, re-examine your hiring and firing practices as they may relate to, or consider, weight.