Obesity Discrimination Claims: Expect a New Wave Soon
The highly influential American Medical Association (AMA) voted yesterday on a policy that will recognize obesity as much more than a public health issue. According to the AMA, obesity is now officially a disease. “Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” said AMA board member Patrice Harris, M.D. “The AMA is committed to improving health outcomes and is working to reduce the incidence of cardiovascular disease and type 2 diabetes, which are often linked to obesity.”
No doubt well-intentioned in the voting, the AMA may not be aware of the consequences of the “disease” designation outside of the health care arena. Even though the AMA is not a government agency and not empowered to make laws or regulations, its vote will have the direct effect of changing employment law. The term “disease” is used in numerous employment laws. More importantly, the laws do not define what constitutes a disease. Rather, courts look to medical community’s definition of what constitutes a disease. Accordingly, obese employees will now find protection and rights under a number of employment laws that did not exist previously.
Probably the most immediate and obvious effects of the AMA’s vote will be seen in the area of disability discrimination. Consider the definition of a “disability” under the California Fair Employment and Housing Act (FEHA). An employee has a physical disability if the employee has any “disease” that affects one or more “body systems” and limits a “major life activity.” Body systems include the musculoskeletal, cardiovascular and respiratory systems. Major life activities include walking, breathing and bending. A major life activity is limited if the disease makes the activity difficult. Is there any doubt that it can be difficult for obese individuals to walk, breath or bend? Even if they have no difficulty, wouldn’t many people think they do? Remember, the law not only protects individuals with a disability, but also those who are perceived to have a disability or who had a disability in the past. Cal. Govt. Code § 12926(l).
Both state and federal courts previously recognized that obesity could be protected as a disability, but not until the employee proved that the excess weight was related to disorder or medical condition as opposed to a self-imposed condition.
Thus, to the extent that obesity, or Cook’s form of obesity, is caused by systemic or metabolic factors and constitutes an immutable condition that she is powerless to control, it may be a physiological disorder qualifying as a handicap. [Citations.] Conversely, to the extent that obesity is a transitory or self-imposed condition resulting from an individual’s voluntary action or inaction, it would be neither a physiological disorder nor a handicap. Cook v. Rhode Island, 1992 U.S. Dist. LEXIS 22867.
Thus, both judicial and administrative interpretations of the federal statutes on which our law is modeled uniformly reject the argument that weight unrelated to a physiological, systemic disorder constitutes a handicap or disability. These interpretations are also consistent with most other state court decisions on the subject. [Citations.] We conclude, therefore, that an individual who asserts a violation of the FEHA on the basis of his or her weight must adduce evidence of a physiological, systemic basis for the condition. Cassista v. Community Foods, Inc., 5 Cal. 4th 1050 (1993) superseded on other grounds.
With the AMA’s determination that obesity is a disease, it is probable that employees will no longer have to prove that the extra weight is caused by a physiological disorder or medical condition. In effect, the AMA is saying that all obesity is. In light of this reduced burden of proof and the very high percentage of individuals who are overweight, employers should expect a significant increase in disability discrimination claims based upon the new disease—obesity.