Is Obesity the Same as a Green Mohawk?
Don't take appearance into account when making employment decisions. Hiring and firing should be image-blind, performance-only decisions.
It's been a few months since I've written about the growing trend of plaintiffs trying to shoehorn obestity-discrimination claims under the Americans with Disabilities Act. At his Employer Handbook Blog, Eric Meyer brings us the story of Powell v. Gentiva Health Services, in which a 5' 3", 230 pound woman claimed that she was fired because her employer perceived her as disabled on account of her morbid obestiy.
The district court did not buy her argument, likening one's obestity to a green mohawk:
Plaintiff's argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an "undesirable" physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a "physical or mental impairment" within any rational definition of the phrase.
The court continued, however, by envisioning a scenario in which weight could be an ADA-protected disability:
Of course, … an employer may perceive an employee's overweight status to constitute a physical impairment. For example, suppose an employer believes that an overweight job applicant cannot climb a ladder, or walk across a parking lot, or climb flights of stairs, and therefore does not hire the overweight individual for a job that requires such activities. That might give rise to "regarded-as" status for an ADA claim in the post-ADAAA world. But that is not what we have here.… Powell points to not a shred of evidence that Gentiva viewed her weight as a physiological disorder that affected any of her body systems.
Here's where I think this court got this issue wrong. If making sales is an esential function of the job (and, given that Powell was a salesperson, it's safe to assume that making sales was an essential function of her job), then I don't see how making sales is any different than climbing a ladder, at least as far as the ADA's "regarded-as" scheme is concerned.
Powell did not lose her claim because the ADA does not protect obesity. Powell lost her claim because she had absolutely no evidence that her employer considered her obese, let alone considered her weight in making its decision to fire her.
Whether or not the ADA protects obesity as a disability is an issue that the courts will debate for years. While there is no clear answer, given the breadth of the ADA's coverage, employers take a big risk when firing an overweight employee because of his or her weight. So, what's the easy answer on how to handle this issue? Don't take appearance into account when making employment decisions. Hiring and firing should be image-blind, performance-only decisions. If you stick to that principle, the obesity-as-disability debate should never enter your workplace.
Jon Hymanis a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email firstname.lastname@example.org. For more information, contact Hyman at (216) 736-7226 email@example.com. Follow Hyman on Twitter at @jonhyman.