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Published:  February 24, 2014

Recently an employee filed suit in Federal Court against her former employer for being fired because she was obese and, she claimed, her employer perceived this as a disability.

In order for an employer to violate the Americans with Disabilities Act (ADA), the employer must perceive the employee as having an impairment that limits a major life activity. It has specifically been held that breathing, walking, eating, standing, and similar activities are “major life activities” for purposes of the ADA. Therefore, if the employer in this case believed that the employee’s weight would limit her from performing these or any other major life activities, and fired her because of this, then the employer violated the ADA.

In the case discussed above, Gina Powell v. Gentiva Health Services, Inc., the Federal District Court for Alabama stated that Ms. Powell having an “undesirable characteristic” (being obese) is the same as if she had a neon green Mohawk. Judge William Steele then continues to state both these choices might be viewed as unprofessional but that does not make her weight a “physical or mental impairment.” Although this was the outcome in the Powell case, First and Second District Courts would likely find differently.

If an employer believed that an employee’s weight will in any way impair her ability to perform any major life activity then pursuing adverse actions for this reason would be a violation of the ADA. This does not mean that all overweight employees are protected. Rather this simply means that they are held to the same standards as everyone else: they must be judged by their performance and behavior, nothing else.

There will likely be much upcoming discussion and debate about obesity as a disability. To protect your business from possible claims of disability discrimination it is important to make sure you have policies in place outlining expectations for employees and consequences of not meeting expectations, document all policy violations or performance issues, and assess every employee under the same standard.

If you have any questions regarding the ADA, please contact any of the attorneys at Royal LLP at (413) 586-2288