Obesity may fall under ADA scrutiny

Published
8:00 pm EDT, Wednesday, May 11, 2011

Inquiry: I am having trouble finding a job as a bank teller. It may be because I am way overweight. Although I could do the job, I would need some accommodation from the employer...but no one has offered a job. Do I have any legal rights?

-- Sally, Norwalk

Response: Your legal rights will largely depend on whether your obesity condition will be considered to be a "disability" or not. There are state laws and federal laws (ADA) that prohibit disability discrimination.

The letters "ADA" stand for a federal law: Americans with Disabilities Act. This law took effect on July 26, 1992. It applies to employers with at least fifteen employees. Connecticut state law also prohibits disability discrimination by employers with at least three employees. Its law is similar to the ADA.

Prohibited

As with the other employment discrimination statutes which prohibit age, race, sex, religious and national origin discrimination, the ADA and the state disability laws outlaw discrimination against the handicapped in all employment practices ---- including recruiting, hiring, placement, training, promotion, transfer, benefits and discharge (among others).

Who Is Protected?

The ADA protects applicants or employees who are "qualified individuals with disabilities." Note the word "qualified" ---- just having a disability doesn't mean you are protected by the law. One has a disability under the ADA if he/she is:

1. a person who has a physical or mental impairment that substantially limits one or more major life activities, or

2. a person who has a record of such impairment, or

3. a person who is regarded as having such an impairment.

Individuals with substantial, chronic (on-going) impairments that limit major life activities such as speaking, walking, talking, hearing, seeing, breathing, etc. are individuals with a disability. Various medical conditions such as the following would usually be considered to be a disability: diabetes, epilepsy, AIDS, paralysis, mental retardation, M.S., substantial loss of hearing or vision, etc.

Even individuals who are currently healthy but who have a history of a disabling condition would be considered to be covered by the ADA. An example would be an employee who is currently in remission after having had cancer.

Those employees who are regarded as having a disability by their employer -- but aren't actually disabled -- are also considered to be protected under the statute!

Qualified?

In order to be protected by the ADA one needs to be both disabled (as discussed above) and qualified.

One is qualified if one has the skills, experience and education for the job in question and can perform the "essential functions" of that job with or without reasonable accommodation.

Such essential functions will vary from job to job but should not include marginal job duties. For example, an "essential function" for a secretary would normally include typing but may not include filing ---- depending on the job in question.

A temporary disability, such as pregnancy or a broken leg, are normally not considered to be covered by the ADA because such conditions are generally short in duration as compared to a chronic condition.

Reasonable Accommodation

Reasonable accommodation means any modification or change to a job or work environment that enables a qualified individual with a disability to perform the essential job functions, such as:

* modifying equipment

* restructuring a job

* enabling access to facilities

* purchasing new equipment

Exception

No accommodation is required if it would impose an "undue hardship" on the employer.

"Undue hardship" means substantial expense or difficulty for the employer. Each employer's claim of such an exception is considered in light of the expense or difficulty involved in relation to the employer's size and overall ability to make such reasonable accommodation.

Current Drug Users

Individuals who are now using illegal drugs are not protected by ADA.

Employers' Obligations

Employers are obligated to make employment decisions without regard to whether one has a disability (assuming the person is qualified) ---- just like employers are not supposed to consider one's sex, age, race, national origin or religion in making such employment decisions.

Employers can ask applicants if they can perform certain job functions but should not ask if the applicant has any disabilities until after the employee has been offered and accepted the job. If all new employees are given a physical, the employer can condition the job offer on passing the physical.

Lastly, employers are permitted to hire the most qualified candidate ---- as long as one's disability is not considered; this again assumes that the employee with the disability is qualified as defined above.

Obesity

If one's weight fulfills the definition of a disability, as referenced above, and accommodating such condition would not constitute an "undue hardship", then he/she would usually , in my opinion, have the legal rights provided by the ADA and by state disability laws.

Currently, the court decisions have come down on both sides of the question as to whether such condition is a disability or not.

Stephen P. Horner is an attorney who practices employment and labor law with the Darien firm of Rucci Burnham. Questions for this column may be submitted at shorner@horner-law.com