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Southwest Airlines recently announced that they would enforce a policy of charging overweight passengers for a second ticket if they were unable to fit into one seat. One commentator labeled this the “two-seat, two-cheek” policy. Individual rights activists call the measure unfair and accuse the company of weight discrimination. Southwest justifies its action on the basis that it should be able to charge more for those people who occupy more than their normal, allotted space in the cabin. Civil libertarians respond that the seats are too small to begin with. The airline counters that people are getting fatter these days. The argument goes on and on. In the wake of this well-publicized event, employers may ask what their legal obligations to “people of size” are, as well as their potential liability for claims of weight discrimination. MORBIDLY OBESE For example, is it permissible to refuse to hire someone solely on the basis that the individual is overweight? Can a company reject an applicant because it considers a person’s large size offensive and the job requires the employee to interact with the public? What should the employer do if an obese worker is being subjected to harassment by co-workers because of his or her excessive weight? Is it safe to assume that a person’s size hinders their physical ability to do the job? The Center for Disease Control and Prevention reports that over 60 percent of the American population are now classified as being overweight or obese. The medical definition of “obesity” is a body weight that exceeds by 20 percent “standard” height and weight. Severe or “morbid” obesity means that a person has a body weight more than 100 percent above the norm or more than 100 pounds over the optimal weight. Most of the weight discrimination cases are presented on the basis of disability discrimination or perceived disability discrimination. In limited jurisdictions, the state or local laws specifically outlaw discrimination against people because of their weight. These include the Michigan Civil Rights Act and ordinances in San Francisco and Santa Cruz, California. The District of Columbia Human Rights Law includes within the scope of its employment discrimination prohibitions the category of “personal appearance.” The EEOC regulations, which were promulgated as interpretive guidance on the Americans with Disabilities Act, state that “except in rare circumstances, obesity is not considered a disability impairment.” Courts also have ruled that obesity alone is not a physical impairment under the Rehabilitation Act of 1973. However, where a person with obesity, or morbid obesity, has an underlying or resultant physiological disorder, such as hypertension, asthma, degenerative arthritis, etc., which affects the body’s systems including musculoskeletal, respiratory or cardiovascular, then the disorder is an impairment under the federal disability discrimination statutes. Many of the state discrimination laws, including Connecticut, follow the same analytical path. LIFE ACTIVITIES The mere presence of a physical impairment does not automatically mean that an employee is legally disabled. The person, in order to qualify as “disabled” under the various statutes, must be substantially limited, or be regarded as so limited, in one or more major life activities. The mere fact that an overweight person may need more rest, is unable to run very fast, has difficulty in walking long distances, can’t completely bend or kneel, or has similar limits as a result of his or her excessive weight, may be insufficient to be considered as a substantial limitation of a major life activity. Cases involving morbid obesity typically present infirmities or disorders, such as arthritis, heart condition or obstructive lung disease that qualify under this test. Some courts have ruled that to the extent obesity is a transitory or self-imposed condition resulting from an individual’s voluntary action or inaction, it would not be either a physiological disorder or handicap. Under the federal and state laws, an obese person with a “disability” may not be subjected to discrimination in their employment and with respect to the various terms, conditions and privileges of the workplace. These include, of course, hiring and termination decisions and freedom from harassment or a hostile work environment. Furthermore, disability discrimination can arise where an individual without disability impairment is regarded as being disabled under the law because of his or her obesity. There are three different ways that such discrimination can occur: �The person may have an impairment that is not substantially limiting, but it is perceived by the employer to be limiting. �The individual may have an impairment, which is only substantially limiting because of the attitudes of others toward the impairment. �The employee may have no impairment at all, but the company regards him or her as having a substantially limiting impairment. Under these circumstances and in dealing with obesity, prospective employers need to be especially cautious of their actions during the interviewing and hiring process. Negative assessments about a applicant’s qualifications or general suitability for a position that are generated because of a dislike or distaste for the person’s large size may turn into a claim and legal judgement of disability discrimination. The unfortunate reality in our society at present is that people of size frequently encounter discriminatory attitudes and are denied opportunities in various aspects of their lives. At the same time it is important to recognize that obese workers are gaining protection against discrimination under federal and many states’ disability laws. Peter A. Janus is the Editor ofConnecticut Labor & Employment Law, published byThe Connecticut Law Tribune, and he is a principal in the law firm of Siegel, O’Connor, Zangari, O’Donnell & Beck, www.siegeloconnor.comin Hartford, Conn.

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