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Lawsuits alleging obesity discrimination may soon become a significant challenge to employers in the United States and the United Kingdom. In both countries, interest groups and government bodies are lecturing about the workplace discrimination said to be suffered by those who are obese. Groups contending that current discrimination laws do not adequately address the problem have increased in number, and they are actively lobbying the U.S. and U.K. governments. Even if no new statutes are enacted, litigation is likely to become more common on both sides of the Atlantic. Employers would be wise to address the issue now. In medical terms, obesity refers to being 20 percent above one’s ideal weight. “Gross” or “serious” obesity is 30 percent to 35 percent above the ideal weight. “Morbid” obesity is 100 pounds above (or twice) the ideal weight. In the United Kingdom, the House of Commons Health Committee has reported that approximately 22 percent of us are obese. By comparison, 25 percent of Americans are estimated to be obese. In light of the current law and the population statistics on obesity, it is likely that there will be more active litigation in both countries alleging workplace discrimination based on obesity. AMERICANS WITH DISABILITIES In the United States, the main act that provides (limited) protection on a federal level for obese individuals is the Americans with Disabilities Act. In general, the ADA prohibits disability-based discrimination in employment if certain criteria are met. Under the ADA, a person is considered disabled if he (i) has a “physical or mental impairment that substantially limits one or more of his major life activities,” (ii) is stigmatized by “a record of such impairment,” or (iii) is “regarded as having such an impairment.” The ADA’s application to obesity is best illustrated by case law. In summary, federal law, as defined by the cases, is seemingly that individuals who suffer discrimination on the basis of their weight are protected under the ADA only if they can produce evidence either of a physiological disorder or of a discriminator perceiving there to be a physiological disorder associated with the obesity. This position was specifically challenged before the U.S. Court of Appeals for the 6th Circuit in the September case of Equal Employment Opportunity Commission v. Watkins Motor Lines Inc. In Watkins, a man working as a truck driver and dockworker (a job that involves climbing, kneeling, bending, stooping, and lifting) injured his knee and had to take time off work to recuperate. He was examined by a doctor to determine whether he was fit to return to work, and the doctor made a specific note that the employee weighed 405 pounds. The doctor then concluded that, even though the employee met the standards for truck drivers, he could not safely perform the requirements of his job. The employee was not allowed to return to work, and his employment was eventually terminated. The employee filed a complaint with the EEOC on the ground that his employment was terminated because of his weight. In the case, the employee did not present any evidence that there was a psychological or physiological cause for his obesity (whether actual or perceived). Rather, in Watkins, the EEOC contended that the employee had an impairment — morbid obesity — that was regarded, albeit erroneously, as affecting his ability to do his job. The EEOC, in essence, was contending that “morbid obesity” by its very nature was an impairment under the ADA. The 6th Circuit did not accept the EEOC’s argument. It held that morbid obesity may amount to an impairment only when there is evidence of a physiological cause. Without a physiological cause, morbid obesity is simply a physical characteristic, such as being very tall or very short. Employers are entitled to prefer one physical characteristic over another, and the ADA provides no protection in this circumstance. Notwithstanding the defeat of the EEOC’s argument in Watkins, the current legal position is very much open to further debate. It remains open for an individual to produce persuasive evidence that, because of its very nature, serious obesity or, more restrictively, morbid obesity always has a physiological cause and is therefore protected by the ADA. Given the right case and the right evidence, the EEOC’s proposition that morbid obesity itself amounts to an impairment and should be recognized as such under the ADA is an attractive argument. It may eventually win. STATE LAWS At the state level in the United States, the laws are inconsistent and in some cases offer more protection to obese individuals than does the federal ADA. In California, for instance, although the Fair Employment and Housing Act does not specifically mention obesity as a protected category, the definition of a “disability” is wide enough to cover obesity. Furthermore, to qualify for protection, the disability must result only in a “limitation” upon a major life activity — not a “substantial limitation,” as under the ADA. On the local level, San Francisco and Santa Cruz have enacted legislation that specifically prevents employment discrimination on the basis of weight. The Human Rights Law in New York is of broader application still by having a wider definition of a “disability.” The legislation provides an extremely broad definition of the causes of the impairment, which may be “anatomical, physiological, genetic or neurological conditions which prevent the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.” In the District of Columbia, Section 2-1402.11 of the Human Rights Law (in addition to protecting individuals with a disability) protects individuals from discrimination on the basis of personal appearance. Although this law has not yet given rise to any significant successful weight-related claims, it may just be a matter of time. The only state to specifically prevent discrimination on the basis of weight is Michigan. The state’s Elliott-Larsen Civil Rights Act was significantly amended in 1976. Now Section 202(i) of the law specifically states that an employer shall not refuse to hire or recruit, discharge, or otherwise discriminate against an individual because of weight (or religion, race, color, national origin, age, sex, height, or marital status). This law was used in the 2005 case of Pasanski v. Continental Rental Inc. Steve Pasanski was discharged from his position as a store manager. He weighed 360 pounds. Pasanski claimed that his employment was terminated because of his weight, and he won $284,000 in damages. Courts in the states mentioned above are not flooded with weight-related litigation, even though some of the state laws provide real protection for obese employees. Thus, as the number of obese individuals continues to rise, the courts and the legislature may take comfort from this and reject any argument that any extension of the ADA to provide more protection for the obese would open the floodgates to litigation. IN THE UNITED KINGDOM If the United States provides more protection on the federal level for individuals who are obese, it is arguably more likely that the United Kingdom will follow suit. In the United Kingdom, no specific legislation protects an employee from discrimination based purely upon weight. But this does not mean that employees have no protection at all. The Employment Rights Act 1996 restricts an employer from dismissing any employee who has more than one year’s service for a reason that is not considered to be “fair” within the meaning of the legislation. Moreover, the Disability Discrimination Act 1995 states that an employee is deemed to have a disability if he has “a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities.” Although certain conditions are specifically excluded from the DDA, obesity is not. As with the ADA, it is difficult for an individual to claim that obesity by its very nature is an impairment under the DDA, unless the obesity has some underlying medical cause. Surprisingly, thus far, there has been no major litigation specifically addressing this point in the United Kingdom. Perhaps it is in anticipation of such a case, or in recognition that the debate in this area of the law is growing, that the U.K. guidance on the definition of disability specifically refers to obesity. The guidance, issued by the secretary of state under the DDA, must be taken into account by a tribunal when determining if a person is disabled. The guidance makes it clear that it is not obesity — the condition — but rather the condition’s “effect” that should be relevant for the purposes of determining whether there is a disability. This means that if the effect of being obese is that one’s mobility is restricted, or that one has breathing difficulties, DDA protection may exist if other conditions are satisfied (that is, there is a long-term, substantial adverse effect on normal day-to-day activities). Such a case, however, has yet to be considered by U.K. courts. RIPE FOR LITIGATION Both the United States and the United Kingdom are ripe for further litigation over obesity. Various studies indicate that employers consider overweight people, particularly overweight white women, negatively (lazy, unsuccessful, or boring, to name just a few of the unsubstantiated stereotypes). The evidence also suggests a direct relationship between appearance and workplace success. Yet there are more morbidly obese people in the workplace than ever before. Perhaps both countries will decide to follow Michigan’s lead and enact a law specifically to address discrimination on the ground of weight. This would remove the need to prove a “disability” to obtain protection against discrimination. In the meantime, companies could mitigate the growing demand for such legislation by voluntarily drafting effective policies addressing this issue. Such policies should be comprehensive and enunciate acceptable and unacceptable behavior, such as specifically prohibiting name-calling. Yet it may be that employers will mostly continue to ignore the issue until more lawsuits are brought. If so, perhaps the ultimate response will be reactionist legislation that may not adequately address the basic legal and social issues and how this emotional topic plays out in the workplace.
Natasha Benn, a senior associate in the London office of Kilpatrick Stockton, specializes in employment and data privacy laws. A former in-house counsel, she now represents national and international businesses on cross-border issues.

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