Obesity's New Label a Concern for Employers; Employees May Claim Disability Discrimination; Bosses May Have to Accommodate Medical Leave

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Ignore an obese employee's request for a larger desk chair, and prepare to be sued for violating disability accommodations law.

Don't hire an overweight woman because she doesn't fit your corporate sales image, and face a potential discrimination lawsuit.

A decision this summer by the American Medical Association to classify obesity as a disease, instead of a condition, has heightened concern among employment law officials about such potential workplace outcomes.

Employees who are obese perhaps as few as 30 pounds over recommended body weight for their height, age and sex are now more likely to be recognized as disabled with rights under the 2008 amendments to the Americans with Disabilities Act.

That can be a big, costly deal, given that one-third of American adults are classified as obese, on top of another one-third considered overweight. The U.S. obesity rate jumped nearly 50 percent from 1997 to 2012, according to the Centers for Disease Control and Prevention.

"Recognizing obesity as a disease will help change the way the medical community tackles this complex issue," AMA board member Patrice Harris said in a statement explaining the reclassification.

The physician group's new definition of obesity doesn't in itself have any force of law, "but there's a high probability it will make it easier for an obese employee to argue that he or she is disabled," said Myra Creighton, a partner at Fisher & Phillips who specializes in advising employers about their obligations relative to workers with disabilities.

"It may be easier for employees to prove disability discrimination," Creighton said. "And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment."

Disability law says an impairment is something that affects a major life activity or body function and that could include walking or sitting. And if obesity qualifies as a disability, then employers have to make reasonable accommodations for medical leaves of absence.

"It's like any other disability, you have to deal with the repercussions," said Russ Riggan, an employment lawyer in Kirkwood.

Riggan said he hadn't seen many discrimination claims that dealt directly with obesity, but workers have commonly fought with their bosses for time off for related medical issues including diabetes or joint problems.

"The huge problem is if you look at it from an employer's perspective, they want their employees to show up and be punctual, work the hours they're scheduled to work, and they want them to be productive," Riggan said. "They could say, 'If you just lose weight you wouldn't have problems,' but that overlooks bigger problems. Maybe someone has an eating disorder or a genetic propensity to be heavier."

A portent of things to come emerged in a lawsuit settled last year after the Equal Employment Opportunity Commission had sued a BAE Systems subsidiary in Houston for disability discrimination. The commission had charged that the company regarded an employee as disabled and fired him because of his obesity even though he could perform his job.

To settle the case, the company agreed to pay the fired worker $55,000 and cover his outplacement services, train managers in disability law compliance and post anti-discrimination notices in the workplace.

Studies have long confirmed a "beauty bias" a tendency for employers to hire and promote attractive people over less comely ones. That bias includes a tacit preference for trim people over fat ones.

But such bias is nearly impossible to prove in a discrimination lawsuit. And obese workers, with extremely limited exceptions, have never had any specific anti-discrimination protections by law.

The AMA's reclassification of obesity as a disease sparked conjecture that that will change.

Creighton's advice: "Employers should avoid any suggestion that the employee's weight suggests the employee cannot do a particular job. …