Obesity is often cited as causing a national health crisis, with 35.7 percent of U.S. adults fitting into a category associated with elevated risk of heart disease, stroke, type 2 diabetes and certain forms of cancer, according to the Centers for Disease Control and Prevention.

It also is creating a crisis for employers, who must balance concerns that severely overweight people are more likely to get injured, miss work and drive up group health insurance premiums against the risk of violating the Americans with Disabilities Act (ADA).

The issue of whether obese people can claim protection under the ADA has been a matter of dispute for many years. The Equal Employment Opportunity Commission (EEOC) says that the law protects people who are severely or morbidly obese—the terms are used interchangeably—commonly defined as a body mass index (BMI) greater than 40. That’s a weight of about 280 pounds for a person 5 feet 10 inches tall. But some gray areas portend more litigation to define just when obesity qualifies as a disability.

“The entire area of discrimination against overweight people is not as cut and dried as it would be for race discrimination,” says Justine Lisser, an EEOC spokesperson.

The Americans with Disabilities Act Amendments Act (ADAAA), which took effect in 2009, complicates the issue. The ADAAA makes it easier for plaintiffs to prove they have covered disabilities generally, and obesity-related disabilities are no exception. Notably, it makes it easier to prove an employee was “regarded as” disabled by his employer.

“Certainly under the old law, someone who was merely obese or even morbidly obese would have difficulty showing he was perceived as disabled—that was a pretty high standard,” says Myra Creighton, a Fisher & Phillips partner. “Now there is a better argument for someone who is even moderately obese.”

Defining Obesity

The EEOC clearly prohibits discrimination against the morbidly obese, but it leaves the door open for less severely obese people to qualify for ADA protection under certain circumstances.

“The ADA prohibits discrimination against people with disabilities, defined as impairments that substantially limit a major life activity,” Lisser says. “Under this definition, it would prohibit discrimination against the morbidly obese, since morbid obesity, as defined clinically as opposed to colloquially, is a covered impairment that can affect the major life activities of endocrine function, as well as others.”

According to Lisser, people with a BMI higher than what is considered healthy, but not so high as to constitute morbid obesity, “might not be directly covered by our laws prohibiting discrimination because they would not have a covered disability.” But if the person’s weight was caused by another impairment, such as Cushing’s disease, medication for depression or a thyroid condition, any adverse employment action based on weight would be disability discrimination, she says.

“Of course, if weight preferences were only applied to one group and not others—say to African-Americans and not whites—this would be illegal race discrimination. Similarly, if it were only applied to women but not to men, it would be illegal sex discrimination because one group was being treated less favorably due to a prohibited characteristic,” Lisser adds.

Evolving Precedent

Prior to the ADAAA, most federal courts found that obesity was only a covered disability when it could be shown to be caused by a physiological disorder, according to Creighton. But a few recent cases suggest that is changing.

In Lowe v. American Eurocopter LLC, a federal judge for the Northern District of Mississippi in December 2010 denied a defendant’s motion to dismiss an ADA claim by a woman who said she was fired because she was obese, and who argued her weight was a covered disability because it affected the major life activity of walking. The plaintiff said she was unable to walk into work from the parking lot and suggested her employer perceived her as disabled because he knew she couldn’t do that. The court held that “a plaintiff now might be considered disabled due to obesity under the ADA if her employer perceived her weight as an impairment.”

In April, Resources for Human Development Inc., a Louisiana chemical-dependence treatment center, agreed to pay $125,000 to settle a lawsuit that the EEOC filed on behalf of a deceased woman who had been fired because of severe obesity—according to the lawsuit, she weighed 527 pounds. The settlement came after a federal judge in the Eastern District of Louisiana, ruling in EEOC v. Resources for Human Development Inc., denied both of the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA. The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder.

In another recent case, a subsidiary of BAE Systems Inc. agreed in July to pay $55,000 to Ronald Kratz II, who reportedly weighed 680 pounds when the company terminated him. At the time of his discharge, Kratz was qualified to perform the essential job functions of his material handler position, the EEOC said in a statement, citing a good performance rating. The EEOC also said the company did not engage in any discussion with Kratz to determine whether reasonable accommodations would have allowed him to continue to perform his duties.

But one recent case shows courts may still closely scrutinize obese employees’ ADA claims. The employer was granted summary judgment in Sibilla v. Follett Corp., a March case that two sisters—one weighing 400 pounds and the other 271 pounds—filed in the Eastern District of New York, claiming they were demoted when Follett took over the contract for the college bookstores where they worked.

“Even under the new, broader ‘regarded as’ definition [in the ADAAA], plaintiffs’ claims still fail since there is no evidence in the record suggesting that Follett perceived the Sibillas as having an impairment,” the court said.

Caution Advised

Employment lawyers say the evolving position of the federal courts, along with the possibility of more state and local laws protecting the obese (see “Local Laws”), require employers to be aware of the implications of taking adverse employment actions against obese employees or job applicants—even if they aren’t morbidly obese.

“I’d advise an employer to be very sensitive if an employee is obese and some action has to be taken,” says Richard Cohen, a partner at Fox Rothschild. “Eventually people who are obese will be covered in some fashion, so I would advise them, ‘Don’t be the first one to make the law.’”

One key point is to respond appropriately when an obese employee asks for a reasonable accommodation in order to do his job, unless it creates an undue hardship on the employer. “It is very important to have a good-faith dialogue,” Cohen says.