Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

On September 27, 2011, the EEOC filed suit against BAE Systems alleging that the company violated the ADA by firing a morbidly obese employee at one of its manufacturing plants.  The employee, who weighed more than 600 pounds, sorted parts on a raised platform, drove a forklift, and performed deskwork.  In its complaint, the EEOC alleged that BAE terminated the long-term employee, after telling him that it “had reached the conclusion that he could no longer perform his job duties because of his weight.”  During the EEOC’s investigation, the company stated that the employee had difficulty bending, stooping, and kneeling.  It also contended that the employee had difficulty walking from the parking lot to the plant, from which it concluded that he had trouble walking around the facility.  BAE denied the employee's request to be moved to another position.  It also allegedly made no attempt to discuss reasonable accommodations.

At present, there are no federal laws designating weight as a “protected characteristic,” like race, sex, and religion under Title VII of the Civil Rights Act of 1991, or prohibiting against discrimination in employment on the basis of obesity.  Further, with the exception of Michigan and a few local jurisdictions (e.g., San Francisco), state and local laws likewise do not afford protection against obesity discrimination.  The EEOC’s suit against BAE, however, highlights an avenue that obese individuals may pursue for protection - the ADA.  Under the ADA, as revised by the ADA Amendments Act of 2008, an individual is considered disabled if he or she has a disability, has a record of a disability, or is regarded as disabled, and that disability “substantially limits one or more of [the individual’s] major life activities.”

Proactive employers can adapt their practices and policies to address this developing issue.  In addition to combating stereotypes about obese workers, employers should recognize obesity as a very real, potential disability that may require reasonable accommodation through the “interactive process” called for by the ADA.  Employers may also consider other measures that address the root of obesity, such as implementing voluntary, private weight reduction programs or developing a healthier workplace culture, for example, by stocking vending machines with water and low-fat snacks, offering fitness fairs and health screenings, and partnering with local athletic clubs to offer employee discounts.

A recent decision out of Ohio provides a good illustration.  In Jacobs v. Marietta Memorial Hospital, the District Court for the Southern District of Ohio held that a hospital manager’s disability and retaliation claims would proceed to trial because the Court could not find that regular presence during core office hours was an essential function of her job. 

The manager, Ann Jacobs, had been diagnosed with bipolar disorder early in her 20 years of employment with the hospital.  Her supervisor had allowed her to work at home when needed in light of the condition.  Jacobs regularly received positive performance evaluations. 

In early 2005, Jacobs began working for a new supervisor, who concluded that Jacobs should be in the office during core business hours because she supervised other employees.  Midway through 2006, the new supervisor revoked permission for Jacobs occasionally to work from home.  When Jacobs sought permission to work at home, the new supervisor told her that she had to use paid time off and give three days notice.  Jacobs later received a poor performance evaluation, was placed on a performance improvement plan, and later was terminated for poor performance. 

Jacobs brought suit against the hospital, claiming disability discrimination and retaliation.  The hospital moved for summary judgment, arguing that Jacobs was not protected by the ADA because she could not perform an essential function of her job--regularly working in the office during core business hours.  The Court refused to dismiss the lawsuit because it could not determine that regular presence in the office during core business hours was an essential function of Jacobs’ job, given that she had worked from home sporadically for a period of eight years and had received positive performance evaluations. 

When an employee requests an accommodation due to a disability, the employer has an obligation to work with the employee to determine whether there is a reasonable accommodation that will enable the employee to perform all the essential functions of a job.  An employer is not required to eliminate an essential function in order to accommodate an employee.  If the employee is relieved of some duties as part of an accommodation, it will be difficult for the employer to establish later that such duties are essential functions of the job.  Thus, employers should be careful to preserve the job’s core functions when trying to accommodate an employee.