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Written By: Sarah L. Harty, Esq.
Neil, Dymott, Frank, McFall & Trexler APLC
San Diego, California USA

As a result of the obesity rates doubling in the last twenty years, the American Medical Association (“AMA”) recently instituted a new policy that recognizes obesity as a medical disease. The latest Centers for Disease Control data indicate that more than one-third of the American workforce is obese. In California, this amounts to one in four adults suffering from obesity and being considered medically ill. Evidence suggests that by 2040, roughly half of the adult population will be obese. These staggering statistics should be alarming to California employers for a variety of reasons, from the rising cost of annual medical benefits for employees who are obese to the increased potential for obesity discrimination lawsuits.

The AMA’s recognition of obesity as a disease is bound to give rise to new claims and bolster existing ones that involve discrimination based on the obesity of employees, despite the fact that obesity is not yet considered a protected disability in the state of California. Employees typically bring discrimination claims under the Fair Employment and Housing Act (“FEHA”). FEHA protects a person who has a physical or mental disability that limits one or more major life activities, has a history of such, or is regarded or treated as having an impairment. When the AMA voted in favor of classifying obesity as a disease, the AMA Council determined obesity fit some of the criteria for the disease because it impairs normal body function.

Under FEHA, employers are required to provide reasonable accommodations for employees with disabilities. Obesity is not yet considered a protected disability in the state of California, but the AMA’s recognition of obesity as a disease will cause more obese employees to pursue litigation if an employer does not attempt to make a reasonable accommodation. What is a reasonable accommodation? Examples of reasonable accommodations include: making existing facilities accessible, restructuring the job, modifying a work schedule, acquiring or modifying equipment, or reassignment to a vacant position within the company. An employer is not required to remove essential job functions, create a new job, provide personal items (e.g. glasses), maintain the same pay for accommodating a change from full-time to part-time, or to tolerate an employee’s violation of company policies. FEHA permits an employer to discharge a disabled employee that is unable to or cannot safely perform essential duties with reasonable accommodation. Even though the AMA decision has no legal authority in California state or federal court, it may be considered in the determination of a discrimination claim under FEHA where an employer failed to provide reasonable accommodation for an obese employee.

Although the AMA opposes the effort to make obesity a disability, this won’t stop obese employees from using the AMA decision to bolster a claim for discrimination against employers. Because the FEHA definition recognizes physical disabilities that limit major life activities, a definition that parallels the AMA classification of a disease, it is likely the courts will begin to consider obesity as a disability. As the population of obese adults continues to rise, California employers should be aware of this potential area for discrimination litigation and consult an attorney to evaluate whether reasonable accommodations should be made for an employee.

Sarah L. Harty is an associate at Neil Dymott. Her areas of practice include civil litigation, professional liability and business litigation matters. For more information please contact Ms. Harty at sharty@neildymott.com.

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