Last month, a U.S. District Court rejected an employer’s petition to dismiss a case brought by Joseph Whittaker, a severely obese employee, who had been terminated. Whittaker had worked seven years for the company before his termination. The employer maintained the employee was unable to perform his job due to his limited mobility. (Joseph Whittaker v America’s Car-Mart, Inc., No. 13-0108).
In its defense, the employer, America’s Car-Mart Inc. cited a statement from the Equal Employment Opportunity Commission (EEOC) that obesity is considered a disabling impairment only under “rare circumstances.” But the court shot down that defense on the basis that it has been superseded by more recent EEOC interpretations, following legislative updates to the ADA in 2008.
Those amendments were enacted to put Congress on record as rejecting an earlier U.S. Supreme Court ADA ruling deemed to be “unduly restrictive,” according to the judge. Although the court in the America’s Car-Mart case rejected the employer’s petition for the case to be dropped, it hasn’t yet ruled on its merits.
Perception Equals Reality?
The judge in Whittaker v. America’s Car-Mart buttressed his position by citing another federal court’s decision in a case called Lowe v. American Eurocopter, LLC. In that decision, the judge stated, among other things, under the ADA “an individual is now not required to demonstrate the disability she is regarded as having is an actual qualified disability under the ADA or that it substantially limits a major life activity… Thus, a plaintiff now might be considered disabled due to obesity under the ADA if her employer perceived her weight as an impairment.”
In yet another case, EEOC v. Resources for Human Development Inc.,* the EEOC asserted the employer terminated a severely obese employee even though she was able to perform the essential functions of her job. In its description of the case, the EEOC said: “The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder.” The EEOC’s bottom line regarding this case was: “Severely obese people who can do their jobs are every bit as protected by the ADA as people with any other qualifying disability.”
Even though these three cases are at the federal District Court level and the issue has not been definitively resolved in higher courts, it’s prudent to accept the EEOC’s position, unless and until the legal tide turns in the other direction.
Making “Reasonable” Accommodations
If severe obesity is to be treated as any other ADA disability, you are obliged to provide a “reasonable accommodation” unless doing so would cause your company “undue hardship.” In other words, you need to do what you would do for, say a hearing-impaired employee.
What’s a reasonable accommodation? “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities,” according to the ADA regulations. Some examples given by the EEOC:
- Making existing facilities accessible;
- Job restructuring;
- Allowing part-time or modified work schedules;
- Acquiring or modifying equipment;
- Changing tests, training materials, or policies;
- Providing qualified readers or interpreters; and
- Permitting reassignment to a vacant position.
You are not required to eliminate any essential job functions to accommodate a disabled employee, nor are you required to lower your qualitative or quantitative production or service standards for the individual. Nor are you prohibited from doing so, of course.
As noted, you are off the hook if providing an accommodation would cause an “undue hardship.” But what does that mean? According to the EEOC, it means “significant difficulty or expense, and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.” In other words, hardship is a relative concept and varies according to the situation at any given employer.
Also, undue hardship isn’t only about the financial cost of an accommodation. It also applies to those that “are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business,” according to the EEOC.
You are not required to begin consideration of offering an accommodation unless you receive a request from the employee or a family member of that employee. The EEOC, leaving little to doubt, has detailed rules regarding what constitutes an official request for a reasonable accommodation. Consult a professional if you believe you may need to accommodate an employee, whether one with severe obesity, or impairments enumerated in the ADA.
*EEOC v. Resources for Human Development Inc. (No. 2:10-cv03322)